Bennett (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Residence) (Class BT) visa, subclass 837 (Orphan relative), in relation to an Australian relative. A second applicant was also involved, raising a jurisdictional issue concerning a combined review application.

The primary legal issues before the Tribunal were whether the first-named applicant qualified as an "orphan relative" of an Australian relative at the time of application and at the time of the decision, and whether the Tribunal had jurisdiction over the matter of the second-named applicant. To be considered an orphan relative, the applicant must meet specific criteria under the Migration Regulations 1994, including age, marital status, being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and being unable to be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts, with no compelling reason against granting the visa in the applicant's best interests.

The Tribunal found that the first-named applicant met the age and marital status requirements. However, the core of the dispute centred on whether the applicant's mother, described as an itinerant alcoholic without a fixed place of abode, constituted a parent who was "permanently incapacitated" or of "unknown whereabouts" for the purposes of the orphan relative definition. The Tribunal concluded that the applicant was not an orphan relative of an Australian relative at the time of application, nor at the time of the decision, and therefore affirmed the decision not to grant the visa. Regarding the second applicant, the Tribunal determined it had no jurisdiction over that matter due to the nature of the combined review application.