1730636 (Migration)

This matter concerned applications for Other Family (Migrant) (Class BO) visas, specifically seeking a Subclass 115 (Remaining Relative) visa. The dispute arose because the visa applicants claimed to be the "remaining relative" of an Australian citizen. The court was required to determine whether the applicants met the criteria for this visa subclass, particularly concerning their relationship to an Australian relative and the absence of other near relatives not residing in Australia.

The court was tasked with interpreting and applying the criteria for a Subclass 115 visa as set out in the Migration Regulations 1994. Specifically, the court had to consider whether the Australian relative was usually resident in Australia, and whether the visa applicant, along with 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 court also had to assess whether the applicants met specific clauses within Schedule 2 of the Regulations, including cl.115.211, cl.115.221, cl.115.311, and cl.115.321.

The court found that for the first, second, and third named applicants, the criteria for a Subclass 115 visa were met, including being a remaining relative of an Australian citizen who was usually resident in Australia, and having no near relatives outside of Australia. However, the court was not satisfied that the fourth named applicant met clause 115.321 of the Regulations. Consequently, the court remitted the applications for the first, second, and third named applicants for reconsideration with a direction that the specified criteria were met, while affirming the decision not to grant the visa to the fourth named applicant.