ZAYTOUNE (Migration)

The Administrative Appeals Tribunal considered a decision concerning a Child (Migrant) (Class AH) visa, Subclass 101. The review applicant sought to sponsor Mariam and Chaymaa, who are the daughters of her ex-partner, Mr Hmouda, from a previous relationship. The core dispute was whether these children qualified as step-children of the review applicant under the relevant migration regulations.

The Tribunal was required to determine if Mariam and Chaymaa met the definition of a "step-child" as defined in regulation 1.03 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the review applicant had the necessary legal guardianship or custody, or a parenting order under the Family Law Act 1975, in relation to the children, given that they were not the biological children of the review applicant and were children of her former spouse.

The Tribunal reasoned that the definition of a step-child in regulation 1.03(b)(iii) requires the sponsoring parent to have either a parenting order under the Family Law Act 1975, or guardianship or custody under a relevant law. The review applicant confirmed the absence of any Australian parenting orders. Furthermore, she stated that Lebanese law does not provide for adoption and that no Lebanese court had granted her guardianship or custody of the children. A Certificate of Good Standing obtained by the former husband indicated he retained responsibility for the children's affairs, and the Tribunal found that a letter from him supporting the sponsorship did not confer guardianship or custody upon the review applicant, 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 to refuse the visa, was affirmed.