Shabani (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The sponsor was the applicant's aunt, who was an Australian permanent resident. The core dispute revolved around whether the applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994.

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. Specifically, it needed to assess whether the applicant met the criteria outlined in Regulation 1.14, which includes not having turned 18, not having a spouse or de facto partner, being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, being unable to be cared for by either parent because they are dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered whether there was any compelling reason to believe that granting the visa would not be in the applicant's best interests.

The Tribunal found that the applicant met the age and marital status requirements of Regulation 1.14. However, it concluded that the applicant was not an orphan relative because the condition that both parents are dead, permanently incapacitated, or of unknown whereabouts was not satisfied. The decision noted that while financial assistance had been provided to the applicant's family, this did not establish that the parents were unable to care for the child. Consequently, the Tribunal affirmed the decision not to grant the visa.