Omer (Migration)

The Administrative Appeals Tribunal considered a decision concerning visa applicants seeking Subclass 117 (Orphan Relative) visas. The review applicant, who is an Australian relative of the visa applicants, sought to have the decision not to grant these visas set aside.

The primary legal issue before the Tribunal was whether the visa applicants met the definition of "orphan relative" as defined in the Migration Regulations 1994, both at the time of their visa application and at the time of the Tribunal's decision. This required determining if the applicants were under 18, a relative of an Australian citizen, and crucially, if they could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal found that there was insufficient evidence to satisfy the requirements of Regulation 1.14(b). Specifically, the Tribunal was not satisfied that the visa applicants could not be cared for by either parent because each of them was dead, permanently incapacitated, or of unknown whereabouts. While the review applicant provided an account of her mother's disappearance and claimed her father was absent, there was no contemporaneous evidence to support the claimed disappearance of the mother or the death of the father. The Tribunal noted that permanent incapacity refers to an indefinite impairment of a parent's ability to care for a child, not merely a refusal or unwillingness to do so.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants Child (Migrant) (Class AH) visas, as they did not meet the criteria for being orphan relatives.