Ismail (Migration)

The Administrative Appeals Tribunal (AAT) considered the application of a younger sibling for a Child (Migrant) (Class AH) visa, subclass 117 (Orphan Relative). The applicant sought review of a decision to refuse the visa. The primary applicant was the younger sibling of a deceased parent, and the second applicant, a nephew, had his application withdrawn. The core of the dispute concerned the applicant's age at the time of the visa application and the subsequent decision, and whether the best interests of the child were adequately considered.

The Tribunal was required to determine whether the applicant met the eligibility criteria for the Orphan Relative visa, specifically concerning their age at the relevant times. It also had to consider whether the best interests of the applicant, a young, single female orphan facing dangerous and volatile conditions, were properly taken into account in the original decision-making process. The applicant's age was evidenced by an original birth certificate, dated shortly before the application was made, which indicated the applicant was 16 at that time.

In its reasoning, the Tribunal acknowledged that the non-registration of births at the time of birth is common in rural areas, and found the applicant's age at the time of a guardianship order to be consistent with the birth certificate. Despite the applicant now being over 18, the Tribunal considered the vulnerability of a young, single female orphan in dangerous conditions as a significant factor in assessing best interests. Given these considerations and the circumstances, the Tribunal decided to remit the decision for reconsideration.