Sada (Migration)

This matter concerned applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The review applicant, an Australian citizen, was the aunt of the visa applicants. The central dispute revolved around whether the visa applicants qualified as "orphan relatives" of the review applicant at the time of their applications and at the time of the decision. The Tribunal was also required to consider whether the applicants met other specified criteria for the visa.

The Tribunal was tasked with determining if each visa applicant was an "orphan relative" of an Australian relative, as defined by the Migration Regulations 1994. This involved assessing whether the applicants had not turned 18, did not have a spouse or de facto partner, and were a relative of the Australian sponsor. Crucially, the Tribunal had to ascertain if the applicants' parents were either dead, permanently incapacitated, or of unknown whereabouts, and whether there was no compelling reason to believe that granting the visa would not be in the best interests of the applicants. The Tribunal also needed to consider the impact of the applicants turning 18 between the time of application and the time of decision.

The Tribunal found that the review applicant was an Australian relative of the visa applicants. It concluded that each visa applicant was an orphan relative of an Australian relative at the time of application and continued to meet this criterion at the time of the decision. The Tribunal also determined that the age and spouse/de facto partner requirements of Regulation 1.14 were satisfied at both relevant times. Contemporary evidence of the parents' deaths was provided, satisfying the criteria for being an orphan relative.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration. The direction was that all named visa applicants met the criteria specified in clauses 117.211, 117.221, and 117.224 of Schedule 2 to the Regulations.