Naidoo (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicant sought review of a decision to refuse this visa. The core of the dispute revolved around whether the applicant met the definition of an "orphan relative" as defined in the Migration Regulations 1994 (Cth). The decision was made by Edward Howard, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicant satisfied the criteria for an orphan relative under clause 117.211 of Schedule 2 to the Migration Regulations, read in conjunction with regulation 1.14. Specifically, the Tribunal had to determine if the applicant was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, if the applicant could not be cared for by either parent because each of them was either dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal found that the visa applicant was indeed a niece of the review applicant, who was an Australian permanent resident, thus satisfying the "relative" requirement under regulation 1.14(a)(iii). However, the Tribunal determined that the applicant did not meet the criteria under regulation 1.14(b). The evidence clearly indicated that the whereabouts of the visa applicant's father were known, and neither of the applicant's parents were dead, permanently incapacitated, or of unknown whereabouts. Consequently, the applicant could not be considered an orphan relative for the purposes of the Subclass 117 visa.

As the visa applicant failed to meet the essential criteria for the Subclass 117 visa, the Tribunal affirmed the decision not to grant the visa. No claims were advanced in respect of any other visa subclasses within Class AH.