Engineer (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Child (Residence) (Class BT) visa, specifically Subclass 837 (Orphan relative). The applicant sought to establish that they were an orphan relative of an Australian relative, as defined by the Migration Regulations 1994. The applicant's maternal grandparents were the relevant Australian relatives, and the applicant claimed they could not be cared for by either parent due to their unknown whereabouts, having been abandoned by both parents.

The primary legal issue before the Tribunal was whether the applicant met the definition of an "orphan relative" under Regulation 1.14 of the Migration Regulations 1994 at the time of the visa application and at the time of the decision. This required determining if the applicant was under 18, a relative of an Australian citizen, and crucially, if both parents were either dead, permanently incapacitated, or of unknown whereabouts, and if there was no compelling reason to believe granting the visa would not be in the applicant's best interests.

The Tribunal accepted the applicant's claims that both parents had abandoned them and were of unknown whereabouts, and that the applicant had been cared for by their grandparents since the abandonment. However, the Tribunal interpreted "unknown whereabouts" in Regulation 1.14(b) in light of the case law, which distinguishes between a parent's refusal or unwillingness to care and a genuine unknown whereabouts. The Tribunal found that the abandonment by the parents, while accepted, indicated a refusal to care rather than a situation where their whereabouts were truly unknown in the sense contemplated by the regulation. Consequently, the Tribunal concluded that the applicant did not meet the criteria for being an orphan relative.

The Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, finding that the criteria for the Subclass 837 visa were not met. No claims were advanced in respect of other visa subclasses within Class BT.