Haidari (Migration)

The Administrative Appeals Tribunal considered the case of visa applicants seeking a Child (Migrant) (Class AH) visa, specifically Subclass 117 (Orphan Relative). The sponsor, Mohammad Haidari, claimed the visa applicants were his brothers and sister. The core dispute revolved around whether the applicants met the definition of "orphan relative" as required by the Migration Regulations 1994.

The Tribunal was required to determine two primary legal issues. Firstly, whether the visa applicants were "relatives" of an Australian permanent resident, as defined by the Regulations. Secondly, and crucially, whether the visa applicants could not be cared for by either parent because each parent was deceased, permanently incapacitated, or of unknown whereabouts, as stipulated by Regulation 1.14(b).

The Tribunal reasoned that while the applicants claimed to be siblings of the Australian sponsor, the evidence presented was insufficient to establish this relationship to the Tribunal's satisfaction. Furthermore, the Tribunal found that the applicants had not demonstrated that they could not be cared for by either parent. The Tribunal noted that the definition of permanent incapacity does not extend to a mere refusal or unwillingness to care for a child. Given these findings, the Tribunal concluded that the criteria for the grant of a Subclass 117 visa were not met.

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