Velasco (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Subclass 117 (Orphan Relative) visa. The review applicant, the visa applicant's uncle and an Australian permanent resident, along with his wife (the visa applicant's maternal aunt), had formally adopted the visa applicant in the Philippines. The core dispute concerned whether the visa applicant met the eligibility criteria for the Orphan Relative visa, specifically the definition of an "orphan relative" and the requirement of being cared for by an Australian relative.

The Tribunal was required to determine if the visa applicant satisfied the criteria for a Subclass 117 visa, as outlined in the Migration Regulations 1994. This involved assessing whether the applicant was an "orphan relative" of an Australian relative, considering the definition of "orphan relative" in regulation 1.14, which requires that both parents are dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider the impact of the formal adoption by an Australian relative and whether the applicant continued to meet the criteria at the time of the decision, or if the only reason they did not was because they had turned 18.

The Tribunal reasoned that while the visa applicant was a relative of an Australian permanent resident and had been formally adopted, the definition of "orphan relative" in regulation 1.14(b) was not met. This regulation specifies that an applicant cannot be cared for by either parent because each is dead, permanently incapacitated, or of unknown whereabouts. The Tribunal found that the biological father's identity was unknown, but there was no evidence presented to suggest that the living mother was permanently incapacitated or of unknown whereabouts, nor that she was unable to provide care. The Tribunal also noted that the applicant had not turned 18 at the time of application and that the formal adoption by the Australian relative did not, in itself, satisfy the "orphan relative" criteria if the parental care requirement was not met.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, finding that the criteria for the Subclass 117 visa, and other visa subclasses in Class AH, were not met.