1831801 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The primary visa applicant, Mr C, sought to establish that he was the remaining relative of his Australian permanent resident father, Mr D. The decision was made by Member Margie Bourke of the Tribunal.

The core legal issues before the Tribunal were whether Mr C qualified as a "remaining relative" of Mr D, an "Australian relative," and whether Mr C and his spouse had no "near relatives" offshore, as required by the Migration Regulations 1994. Specifically, the Tribunal had to determine if Mr D was a parent of Mr C, if Mr D was usually resident in Australia, and if Mr C had no near relatives other than those usually resident in Australia and who were Australian citizens or permanent residents.

The Tribunal found that Mr D was indeed the father of Mr C and was an Australian permanent resident at the time of the application, thus satisfying the definition of an "Australian relative." The Tribunal also considered the definition of "usually resident" in Australia, referencing established case law that emphasises both physical residency and intention, and the principle that a person's usual abode is where they eat, sleep, and have their settled abode. While the Tribunal was satisfied that Mr D met the criteria of being a parent and an Australian relative, and that Mr C met the requirement of having no near relatives offshore, the decision was remitted for reconsideration of the remaining criteria for the visa. The Tribunal directed that the primary visa applicant meet criteria under clauses 115.211, 115.212, and 115.221 of Schedule 2 to the Regulations, and that the secondary visa applicants meet the criteria under clause 115.311 of Schedule 2 to the Regulations.