1936119 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 115 (Remaining Relative), brought by an applicant who resided in India. The applicant sought to establish that they were a "remaining relative" of an Australian relative, specifically their sponsor who was an Australian citizen. The core of the dispute revolved around whether the applicant met the definition of a "remaining relative" under Regulation 1.15 of the Migration Regulations 1994, particularly concerning the requirement to have no "near relatives" outside of Australia who were not Australian citizens, permanent residents, or eligible New Zealand citizens.

The legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an Australian relative at the time of their visa application. This required the Tribunal to determine if the sponsor was an "Australian relative" and if the applicant, along with their spouse or de facto partner, had no "near relatives" other than those usually resident in Australia and holding Australian citizenship, permanent residency, or eligible New Zealand citizenship. The definition of "near relative" under Regulation 1.15(2) was central to this determination.

The Tribunal affirmed the decision not to grant the visa. The applicant's biological father had died, and their biological mother and stepfather resided in Australia. The applicant also had a half-sister and paternal grandparents in India. The Tribunal found that the applicant's half-sister in India constituted a "near relative" who was not usually resident in Australia and did not hold Australian citizenship or permanent residency. Consequently, the applicant failed to satisfy the criterion under Regulation 1.15(1)(c) that they and their spouse or de facto partner have no near relatives other than those usually resident in Australia and holding Australian citizenship, permanent residency, or eligible New Zealand citizenship. The Tribunal concluded that the applicant did not meet the criteria for the Subclass 115 visa.