Nguyen (Migration)

This matter concerned a review of a decision regarding an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The review applicant, Ms Anna Xuan Anh Nguyen, sought to sponsor the visa applicant, Mr Viet Tuan Kiet Nguyen, who was residing in Vietnam. The core of the dispute revolved around whether Mr Nguyen qualified as an "orphan relative" of Ms Nguyen, an Australian citizen.

The Tribunal was required to determine if the visa applicant met the criteria for an orphan relative of an Australian relative, specifically as defined by clause 117.211 of the Migration Regulations 1994. This involved assessing whether the applicant had not turned 18, did not have a spouse or de facto partner, and was a relative of the Australian sponsor. Crucially, the Tribunal also had to consider whether the applicant could not be cared for by either parent because each was dead, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the applicant's best interests.

The Tribunal considered evidence including a death certificate for the applicant's mother and medical reports concerning the father's permanent incapacity, which included allegations of emotional and physical abuse. The Tribunal found that the visa applicant met the criteria under clause 117.211 and clause 117.221 of Schedule 2 to the Regulations, and that he had not turned 18 at the time of application and continued to meet this criterion.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the visa applicant meets the specified criteria for the Subclass 117 (Orphan Relative) visa.