1516425 (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a visa application made by Mr. Sunmola, who sought a Child (Migrant) (Class AH) visa. The core of the dispute revolved around whether Mr. Sunmola met the definition of an "orphan relative" as stipulated in the Migration Regulations 1994. The Tribunal was tasked with determining if the applicant qualified for the visa based on this criterion.

The legal issues before the Tribunal were whether the visa applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision, as required by clause 117.211 and clause 117.221 of the Regulations. Specifically, the Tribunal had to consider the definition of "orphan relative" under regulation 1.14, which requires that an applicant cannot be cared for by either parent because each is dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider the definition of an "Australian relative" under clause 117.111 and the broader definition of "relative" under regulation 1.03.

The Tribunal reasoned that for the applicant to be considered an orphan relative, both parents must be unable to provide care due to death, permanent incapacity, or unknown whereabouts. While the applicant's mother was deceased, his father was alive and had provided a consent to guardianship. However, the father's consent was based on his unwillingness and lack of means or lifestyle to care for the children, rather than permanent incapacity. The Tribunal noted that an unwillingness to care does not satisfy the definition of permanent incapacity as interpreted in *Nguyen v MIMA*. Consequently, the Tribunal found that the applicant did not meet the definition of an orphan relative under regulation 1.14(b).

As the applicant did not meet the criteria for an orphan relative, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. No claims were advanced in respect of other visa subclasses.