Zaytoune (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the visa applicant was the daughter of the review applicant's ex-partner. The review applicant sought to sponsor the visa applicant as her step-child. The decision was made by Hugh Sanderson, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the visa applicant met the definition of a step-child under the Migration Regulations 1994, specifically in relation to the review applicant. This required determining if the visa applicant, who was the child of the review applicant's former husband, had been granted guardianship or custody by the review applicant under relevant Australian or foreign law, or if there was a parenting order in force under the Family Law Act 1975 designating the review applicant as responsible for the child's care.

The Tribunal reasoned that the definition of a step-child in regulation 1.03(b) required the sponsoring parent to have guardianship or custody, or a parenting order specifying their responsibility for the child's care. The review applicant conceded that no such Australian parenting orders were in place. Furthermore, the Tribunal found that no Lebanese court or authority had granted the review applicant guardianship or custody of the children. A Certificate of Good Standing obtained by the review applicant's former husband indicated he retained responsibility for the children's affairs, and a letter from him supporting the sponsorship was not accepted as evidence of the review applicant having guardianship or custody, as children cannot be given away in such a manner.

Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met. The decision under review, which was not to grant the visa, was affirmed.