Mlilo (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan relative), applied for by a visa applicant and sponsored by an Australian relative, Mr. Njabulo Mlilo. The core dispute revolved around whether the visa applicant qualified as an "orphan relative" under the relevant migration regulations.

The Tribunal was required to determine if the visa applicant met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. This definition necessitates that the applicant be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen; be under 18 years of age; not have a partner; and crucially, cannot be cared for by either parent because each is deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider whether there was a compelling reason to believe that granting the visa would not be in the applicant's best interests, and whether the criteria were met at the time of application and continued to be met at the time of the decision.

The Tribunal found that while the visa applicant met the criteria of being a relative of an Australian citizen, not having a partner, and having turned 18 (which was permissible under clause 117.221), she did not satisfy the requirement that she could not be cared for by either parent. Evidence presented indicated that the applicant's father was deceased, but her mother, though diagnosed with a medical condition that physically limited her daily activities and her capacity to provide care, was not considered permanently incapacitated to the extent that she could not provide any form of care, including emotional and psychological support. The Tribunal interpreted "cannot be cared for by either parent" strictly, requiring a complete inability to provide care.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Subclass 117 visa, as the criteria for being an orphan relative were not met.