2001061 (Migration)

The Administrative Appeals Tribunal considered an application for Other Family (Residence) (Class BU) visas, Subclass 835 (Remaining Relative), made by Russian and Israeli citizens. The applicants claimed to be the remaining relatives of an Australian citizen, who they identified as their brother. The applicants had arrived in Australia in December 2018 on visitor visas and lodged their visa application in November 2019.

The primary legal issue before the Tribunal was whether the applicants met the definition of a "remaining relative" as prescribed by regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to determine if the Australian citizen was a parent or sibling of the applicant, if that Australian relative was usually resident in Australia, and crucially, whether the applicants and 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 Tribunal affirmed the decision not to grant the visas. The reasoning focused on the definition of "remaining relative" under regulation 1.15. While the applicants established that their claimed Australian relative was their brother and was usually resident in Australia, the Tribunal found that the applicants had not satisfied the condition that they, and their spouse or de facto partner, had no near relatives other than those who were usually resident in Australia and held Australian citizenship or permanent residency. The Tribunal noted that the second applicant's siblings were estranged and their whereabouts were unknown, and that the applicants had not provided sufficient evidence to demonstrate they had no other near relatives who did not meet the criteria for being usually resident in Australia. The Tribunal concluded that the applicants did not satisfy the requirements of regulation 1.15.