1601404 (Migration)

This matter concerned an appeal by an applicant for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 visa, against the Tribunal's decision to affirm the refusal of his visa application. The applicant claimed to be the remaining relative of his Australian citizen mother, Tran Thi Huong. The secondary applicant was his daughter. The core of the dispute revolved around whether the applicant met the definition of a "remaining relative" under the Migration Regulations 1994, particularly the requirement of having no "near relatives" other than those usually resident in Australia and holding Australian citizenship or permanent residency.

The legal issues before the Tribunal were whether the applicant was a "remaining relative" of an "Australian relative" at the time of his application and at the time of the decision. This required determining if the applicant had any "near relatives" who were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens. Specifically, the Tribunal had to assess whether the applicant's daughter, who was under 18 years of age, was wholly or substantially in his daily care and control at the time of the application.

The Tribunal found that the applicant's evidence regarding his daughter's daily care and control was vague, inconsistent, and lacked credibility. The applicant demonstrated a lack of detailed knowledge about his daughter's schooling, extracurricular activities, and daily routines, which the Tribunal considered inconsistent with having sole daily care and control of a six-year-old child. Furthermore, the Tribunal found inconsistencies between the applicant's evidence and that of his sister regarding the daughter's living arrangements. Crucially, the Tribunal concluded that at the time of the application, the applicant's daughter was not living with him, he had no direct contact with her, and therefore she was a "near relative" not wholly or substantially in his daily care and control. Consequently, the applicant failed to satisfy the criteria for a "remaining relative" under regulation 1.15(1)(c) of the Migration Regulations 1994.

As a result of the applicant failing to meet the primary criteria for the Subclass 835 visa, the Tribunal affirmed the decision not to grant the visas to either the applicant or his daughter. The Tribunal was not satisfied that the applicant was a remaining relative of an Australian relative at the time of application, nor that he continued to satisfy this criterion at the time of the decision. The secondary applicant's eligibility was contingent on the primary applicant meeting the visa requirements, which he did not.