1509303 (Migration)

This decision concerns a review by the Administrative Appeals Tribunal of a refusal to grant Other Family (Residence) (Class BU) visas to four applicants. The primary basis for the visa application was that the first named applicant was the "remaining relative" of an "Australian relative," specifically his brother, who was an Australian citizen. The Tribunal was required to determine whether the applicants met the criteria for a Subclass 835 visa.

The legal issues before the Tribunal were whether the Australian relative was indeed a brother of the applicant, whether that Australian relative was usually resident in Australia, and whether the applicant and their spouse or de facto partner had no "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal also considered whether the applicants met the prescribed criteria for any other visa subclasses.

The Tribunal found that the first named applicant was the brother of an Australian citizen, satisfying the requirement under regulation 1.15(1)(a) of the Migration Regulations 1994. However, the Tribunal concluded that the applicants did not meet the criteria for a Subclass 835 visa, nor did they meet the criteria for any other visa subclasses. Despite this finding, the Tribunal considered the matter appropriate for ministerial intervention under s.351 of the Migration Act 1958, noting strong compassionate and exceptional circumstances, including significant financial investment in Australia, prolonged residence, and severe hardship caused by fraud that led to criminal prosecution and jail terms for the perpetrator. The Tribunal affirmed the decision not to grant the visas.