Hussein (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), brought before the Tribunal by Ms Nimo Hassan Hussein on behalf of the visa applicant, her brother. The core dispute revolved around whether the visa applicant met the definition of an "orphan relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant satisfied the criteria for being an orphan relative, specifically whether he was under 18 years of age, lacked a spouse or de facto partner, was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also needed to consider if granting the visa would be in the best interests of the applicant.

The Tribunal found that the visa applicant met the criteria of being under 18 years of age at the time of application and continued to meet this criterion. It was also not disputed that he did not have a spouse or de facto partner. DNA evidence supported the claim that the applicant was a relative of the sponsor, Ms Hussein, who was an Australian permanent resident. The Tribunal concluded that the applicant could not be cared for by either parent, as his father was deceased and his mother's whereabouts were unknown, a situation arising from family separation during civil war.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the visa applicant met the criteria for being an orphan relative under clause 117.211(a) of Schedule 2 to the Regulations.