Nadeem (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, specifically a Subclass 837 (Orphan Relative) visa. The applicant sought review of a decision by the Administrative Appeals Tribunal (AAT) which had remitted the application for reconsideration. The core dispute revolved around whether the applicant met the criteria for being an "orphan relative" of an Australian relative as defined by the Migration Regulations 1994.

The AAT was required to determine whether the applicant satisfied the cumulative requirements of Regulation 1.14 of the Migration Regulations 1994, which defines an "orphan relative". This involved assessing whether the applicant was under 18 years of age, did not have a spouse or de facto partner, and was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Furthermore, the AAT had to consider whether both parents were deceased, permanently incapacitated, or of unknown whereabouts, and whether there was no compelling reason to believe that granting the visa would not be in the applicant's best interests. The Tribunal also had to consider the impact of the applicant turning 18 between the time of application and the time of decision, as stipulated by Clause 837.221.

The Tribunal found that the applicant met the criteria under Regulation 1.14(a)(i) and (ii) at both the time of application and the time of decision, as the applicant was 17 at the time of application and was not in a spousal or de facto relationship. The Tribunal also found that Clause 837.213(a) and Clause 837.221 were met, noting that the applicant was only not meeting the age requirement at the time of decision because they had turned 18. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant met the criteria for Clause 837.213 and Clause 837.221 of Schedule 2 to the Regulations.