NGWABI (Migration)

This matter concerned an appeal to the Tribunal regarding a decision not to grant a Child (Migrant) (Class AH) visa, subclass 117 (Orphan relative). The visa applicant sought to be recognised as an orphan relative of an Australian relative. The review applicant, who claimed to be the visa applicant's aunt, sought review of the delegate's decision to refuse the visa.

The central legal issue before the Tribunal was whether the visa applicant met the definition of an "orphan relative" of an "Australian relative" as prescribed by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the relationship between the visa applicant and the review applicant, as clarified to be cousins, satisfied the definition of "relative" for the purposes of the orphan relative criterion. The Tribunal also considered whether the visa applicant continued to satisfy the criterion at the time of the decision, or if the failure to do so was solely due to turning 18.

The Tribunal reasoned that the definition of "relative" under regulation 1.03 of the Migration Regulations 1994 includes specific categories such as grandparent, grandchild, aunt, uncle, niece, nephew, or a close relative. A "close relative" is further defined to include a spouse, de facto partner, child, parent, brother, or sister. The Tribunal found that the visa applicant and the review applicant were cousins, and that "cousin" is not included within the defined categories of "relative" under the regulations. Consequently, the visa applicant could not satisfy the requirement of being a relative of an Australian relative under clause 117.211. The Tribunal also noted that the visa applicant was over 18 years of age, which precluded the option of adoption proceedings that might have otherwise been available.

The Tribunal affirmed the delegate's decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, subclass 117, as the visa applicant did not satisfy the criterion in clause 117.211.