Abrams (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to establish that they were a remaining relative of an Australian relative. The core of the dispute revolved around whether the applicant continued to meet the criteria for being a remaining relative at the time of the decision, particularly in light of a relationship ceasing and the department's request for details of the partner's family members not being fully provided. The decision was made by David Crawshay.

The legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" at the time of the application and whether this status continued to be met at the time of the decision. This required the Tribunal to consider the definitions of "Australian relative" and "remaining relative" as set out in the Migration Regulations 1994, including the requirements that the Australian relative be a parent or sibling, usually resident in Australia, and that the applicant and their partner have no near relatives other than those usually resident in Australia and holding Australian citizenship or permanent residency.

The Tribunal accepted that the applicant had met the core criteria for the visa at the time of application, including being a remaining relative of their Australian citizen father. The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* to interpret the meaning of "usually resident in Australia," which involves considering both physical residency and intention. While the Tribunal found that the applicant met the criterion under cl.835.221 of Schedule 2 to the Regulations, it noted that other criteria for the visa still needed to be considered.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets the criterion specified in cl.835.221 of Schedule 2 to the Regulations.