Kelleher (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of an applicant seeking review of a decision to refuse a Subclass 837 Orphan Relative (Class BT) visa. The applicant, who was in Australia without a substantive visa, had previously had a Subclass 802 Child (Class BT) visa application refused. The primary dispute concerned whether the applicant could apply for the Subclass 837 visa given the operation of section 48 of the Migration Act 1958 (the Act), which restricts visa applications for non-citizens in Australia who have had a prior visa application refused.

The Tribunal was required to determine if the applicant met the criteria for a Subclass 837 Orphan Relative visa, specifically clause 837.211 of Schedule 2 to the Migration Regulations 1994, despite being subject to the section 48 bar. This involved assessing whether the applicant had become an orphan relative of an Australian citizen, permanent resident, or eligible New Zealand citizen since their last substantive visa application, or if they had been adopted by such a person. The Tribunal also considered whether the applicant’s circumstances warranted support for an application for Ministerial intervention.

The Tribunal reasoned that the applicant did not meet the criteria for the Subclass 837 visa because there had been no change in circumstances since the previous visa refusal that would satisfy the definition of an orphan relative. The applicant’s biological mother had died, but the customary adoption process undertaken in Papua New Guinea was not recognised as a formal adoption under Australian migration law, meaning the sponsors were not considered relatives for the purpose of the visa. Consequently, the Tribunal found that the applicant did not meet the requirements of clause 837.211.

Despite the applicant not meeting the visa criteria, the Tribunal supported an application for Ministerial intervention. The Tribunal noted the applicant’s unique and exceptional circumstances, including being in the care of his adoptive parents since infancy, the death of his biological mother, the unknown whereabouts and denial of paternity by his biological father, and the lack of any known close family support in Papua New Guinea. The Tribunal concluded that if the applicant were required to return to Papua New Guinea, he would face significant threats to his welfare and safety. Therefore, the Tribunal affirmed the decision not to grant the visa but recommended Ministerial intervention.