Bustami (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), before the Tribunal. The applicant sought to establish that they were an orphan relative of an Australian relative, a criterion for the visa. The applicant’s father was deceased, and their mother suffered from mental health issues, including depression, for which she was receiving treatment.

The Tribunal was required to determine whether the applicant met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. Specifically, the court needed to ascertain if the applicant could not be cared for by either parent because each was dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered the impact of Indonesian law, which reportedly limits medical practitioners from providing information to third parties without a court order.

The Tribunal reasoned that the criterion "permanently incapacitated" requires that a parent is unable to care for the child, rather than simply refusing to do so, abandoning the child, or being unwilling to care for them. While the applicant’s father was deceased and their mother was receiving treatment for depression, the evidence presented, including a medical statement regarding her medication regime and submissions on Indonesian law, did not establish that she was permanently incapacitated in a manner that prevented her from caring for the applicant. The Tribunal noted that mood swings and receiving treatment for depression did not equate to permanent incapacity.

Consequently, the Tribunal found that the applicant did not meet the criteria for the grant of a Subclass 117 visa, as the requirement that the applicant cannot be cared for by either parent due to permanent incapacity was not satisfied. The Tribunal affirmed the decision not to grant the visa.