Ambaw (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), before the Administrative Appeals Tribunal. The applicant sought review of a decision not to grant the visa. The core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" of an Australian relative, as required by the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision. Specifically, the Tribunal had to consider whether the applicant could be cared for by either parent, given the claimed permanent incapacitation of the father and the unknown whereabouts of the mother. The definition of "orphan relative" under regulation 1.14 of the Migration Regulations 1994 was central to this determination.

The Tribunal reasoned that to satisfy regulation 1.14(b), an applicant must demonstrate that neither parent can care for them due to death, permanent incapacitation, or unknown whereabouts. The Tribunal found that while the applicant claimed the mother's whereabouts were unknown since 2001, the evidence provided, a newspaper clipping from 2014, was afforded limited weight. This was because the applicant had not engaged with services like the International Red Cross or local Kebele offices to trace the mother, nor had they provided physical evidence of their own search efforts. The Tribunal concluded it was not satisfied that the mother was missing or of unknown whereabouts, and therefore the criteria for the Subclass 117 visa were not met.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, Subclass 117.