Abdrehman (Migration)

This matter concerned an appeal against a decision not to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The visa applicants sought to establish that they were orphan relatives of an Australian relative, Mrs Hidra Muhammed Abdrehman. The Tribunal was required to determine whether the visa applicants met the criteria for an orphan relative visa under the Migration Regulations 1994.

The central legal issue was whether the visa applicants qualified as "orphan relatives" as defined by regulation 1.14 of the Migration Regulations 1994. This required the Tribunal to assess whether the applicants were under 18, not in a relationship, a relative of an Australian citizen, and crucially, whether both parents were either deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider whether there was a compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal considered evidence that the visa applicants' father had passed away in 2004 and that their mother had gone to Saudi Arabia for employment in 2009 and had not been heard from since 2011. However, the Tribunal found that there was no physical evidence to support the claim that the mother was of unknown whereabouts, giving little weight to a statutory declaration provided by the review applicant. The Tribunal applied the definition of "permanent incapacity" as per *Nguyen v MIMA* (1998) 158 ALR 639, noting it does not refer to a mere refusal or unwillingness to care. As the criterion regarding the parents' status could not be satisfied due to a lack of supporting evidence, the Tribunal concluded that the visa applicants did not meet the requirements for an orphan relative visa.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants their Child (Migrant) (Class AH) visas.