Singh (Migration)

The Administrative Appeals Tribunal (Migration and Refugee Division) considered an application for a Child (Residence) (Class BT) visa, subclass 837 (Orphan Relative), made by the applicant, who was born in Australia as a non-citizen. The applicant's father was also included in the application. The core of the dispute revolved around whether the applicants met the criteria for the visa, particularly concerning the validity of the application in light of the applicant's visa history and the parents' inability to provide care.

The Tribunal was required to determine whether the applicants satisfied clause 837.212 of the Migration Regulations 1994, which mandates that an applicant either hold a substantive visa or, if not, satisfy Schedule 3 criterion 3002. This, in turn, required the Tribunal to ascertain the "relevant day" for the purpose of Schedule 3 criterion 3002, which dictates that an application must be made validly within 12 months of that day. The "relevant day" is defined by subclause 3001(2) and, in this instance, was the last day the applicant held a substantive visa.

The Tribunal reasoned that the applicant, born in Australia as a non-citizen to parents holding subclass 572 visas, was taken to have been granted a subclass 572 visa at birth, combined with their parents' visa. The applicant's mother's subclass 572 visa was cancelled on 3 May 2010, and by operation of section 140 of the Migration Act 1958, the applicant's visa was also cancelled on the same date. As the applicant had not held a substantive visa since that cancellation, the "relevant day" was 3 May 2010. Schedule 3 criterion 3002 required the application to be made within 12 months of this date, meaning by 2 May 2011. However, the application was lodged on 21 November 2017, significantly outside this timeframe.

Consequently, the Tribunal affirmed the decisions not to grant the applicants the Child (Residence) (Class BT) visas, finding that the application was not made within the prescribed 12-month period after the relevant day. The Tribunal also indicated that it had chosen not to refer the case for Ministerial Intervention.