PRASAD (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The visa applicant was over 18 years of age at the time of application and at the time of the decision. The review applicant, an Australian relative, had been unable to adopt the visa applicant in Fiji. The review applicant sought a referral to the Minister for Ministerial Intervention, noting that the visa applicant's sister had previously been granted a Subclass 117 visa.

The Tribunal was required to determine whether the visa applicant met the criteria for an Orphan Relative visa, specifically whether the applicant was an orphan relative of an Australian relative at the time of application and at the time of decision, and whether the applicant had been adopted by the Australian relative. The Tribunal also considered whether the circumstances warranted a referral for Ministerial Intervention under section 351 of the Migration Act 1958 (Cth).

The Tribunal reasoned that the visa applicant did not meet the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994, primarily because the applicant had turned 18 and was not under 18 at the time of application or decision. Furthermore, the Tribunal found that the review applicant had not successfully adopted the visa applicant in Fiji, thus failing to meet the alternative criterion under clause 117.211(b). The Tribunal also considered the request for Ministerial Intervention, noting the review applicant's submission that the visa applicant and his sister should be reunited in Australia. However, the Tribunal concluded that the circumstances, while sympathetic, did not present unique or exceptional circumstances that would justify a referral for Ministerial Intervention, particularly as the visa applicant was pursuing studies in Fiji and was supported by the review applicant and her husband.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. The Tribunal noted that the review applicant could still make a direct request to the Minister for Ministerial Intervention.