Rwambiwa (Migration)

This matter concerned an application for review by the visa applicant, Mrs Annah Rwambiwa, of a decision not to grant her a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan relative) visa. The review was heard by a Member of the Tribunal, Moira Brophy.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for an orphan relative visa, as defined by the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision, and crucially, whether she had attained the age of 18 years.

The Tribunal's reasoning focused on the definition of an "orphan relative" under regulation 1.14 of the Migration Regulations. This definition requires, among other things, that the applicant has not turned 18 years of age. The evidence presented, including the applicant's declared date of birth on her application form and passport, established that she was born on 23 October 1995. Consequently, the Tribunal found that the applicant had turned 18 years of age on 23 October 2013. As the visa application was made on 19 February 2016, the applicant was over 18 at the time of application and continued to be so at the time of the decision. Since the applicant failed to meet this threshold criterion, the Tribunal did not consider the remaining criteria for the visa.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.