Ogad (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Master Kian Ogad, a national of the Philippines, a Child (Residence) (Class BT) visa, Subclass 837 (Orphan Relative). The applicant, born in April 2009, applied for the visa in November 2021. The review was heard by Kira Raif of the Migration and Refugee Division of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met Schedule 3 criterion 3002 of the Migration Regulations 1994 (Cth). This criterion is relevant for applicants who do not hold a substantive visa at the time of application and is generally met if the application is made within 12 months after the relevant day as defined in subclause 3001(2). The applicant had entered Australia on a Visitor visa in May 2019, which ceased in August 2019, and had held bridging visas since that time. Consequently, the delegate found that the applicant did not meet criterion 3002, which was a requirement for the Subclass 837 visa under clause 837.212(b).

The Tribunal considered the applicant's circumstances, including the death of his mother, lack of contact with his father, and legal guardianship and long-term care provided by his sister in Australia. It noted the absence of evidence of adoption, the limited support available in the applicant's home country, the lengthy processing times for offshore visa applications, and the applicant's settled life in Australia. Despite these compassionate circumstances, the Tribunal concluded that the applicant did not meet the Schedule 3 criterion 3002.

The Tribunal affirmed the delegate's decision not to grant the visa. However, it noted that the strong compassionate circumstances warranted referral for ministerial consideration under section 351 of the Migration Act 1958 (Cth).