1807455 (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), reviewed by the Tribunal. The applicant sought to be recognised as a remaining relative of their Australian sister. The core dispute revolved around whether the applicant met the specific criteria for this visa subclass, particularly concerning the definition of "near relatives" and their residency status.

The Tribunal was required to determine if the applicant qualified as a "remaining relative" of an "Australian relative" at the time of application and continued to do so at the time of the decision. This involved interpreting the definitions of "Australian relative" and "remaining relative" as set out in the Migration Regulations 1994, specifically Regulation 1.15. A key issue was whether 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.

The Tribunal found that the applicant did not meet the criteria for the Subclass 835 visa. While the applicant's sister was an Australian relative, the applicant failed to satisfy Regulation 1.15(1)(c) because their parents, who resided and worked in Fiji, were considered "near relatives" and did not meet the residency or citizenship requirements. The applicant's father was an adoptive father, and the applicant also had a son residing in Fiji, both of whom were identified as near relatives not meeting the specified criteria. Despite this finding, the Tribunal recommended to the Minister for consideration under s.351 of the Migration Act 1958 that the decision be replaced with one favourable to the applicant, citing strong compassionate circumstances and the exceptional economic, cultural, and social benefits the applicant provided to Australia through their professional and volunteer work.