Negash (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by the visa applicant in relation to an Australian relative. The Tribunal was required to determine whether the visa applicant met the criteria for the visa, specifically whether the applicant was an orphan relative of an Australian relative at the time of the application and at the time of the decision. The Tribunal also considered the applicant's age, which was a crucial element of the orphan relative criteria.

The primary legal issues before the Tribunal were whether the visa applicant was an orphan relative of an Australian relative at the time of the visa application, as required by clause 117.211(a) of Schedule 2 to the Migration Regulations 1994, and whether the applicant continued to satisfy the criteria at the time of the decision, specifically in relation to the age requirement under clause 117.221(b) and regulation 1.14(a)(i). The Tribunal also considered the best interests of the child, as stipulated in regulation 1.14(c).

The Tribunal found that the visa applicant was an orphan relative of the Australian relative at the time of the application, satisfying clause 117.211(a). The Tribunal also found that, despite having turned 18, the applicant met the criterion in clause 117.221(b) at the time of the decision. This finding was based on an assessment of the applicant's date of birth, which was corroborated by documentary evidence including an Ethiopian birth certificate and passport, and oral evidence from the review applicant. The Tribunal noted that the delegate had refused the visa based on a different criterion, without making specific findings on the age requirement. The Tribunal acknowledged the receipt of additional evidence, including school records and information from the International Organisation for Migration, which had not been before the original delegate.

Given these findings, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), to the Minister for reconsideration. The Tribunal directed that the visa applicant met the criteria under clause 117.211 and clause 117.221 of Schedule 2 to the Migration Regulations 1994.