Alfred Noel (Migration)

This matter concerned an appeal by the applicant, Alfred Noel, against a decision to refuse him an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to establish that he was a "remaining relative" of his mother, Mrs Jaibe Mary Cleophus, who was an Australian permanent resident. The decision under review was affirmed by Deputy President Justin Owen of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 835 visa, particularly the definition of a "remaining relative" as set out in regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant, along with his spouse, had any "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The definition of "near relative" was also a key consideration.

The Tribunal's reasoning focused on the applicant's relationship with his biological father, Mr Pooppana Joseph Thomas. Despite the applicant's claims of a lack of engagement and a history of abuse, the Tribunal found that the biological father was a "near relative" as defined by the regulations. The applicant's assertion that his step-father should be considered his immediate relative in place of his biological father was not accepted. The Tribunal concluded that because the applicant had a near relative (his biological father) who was not usually resident in Australia and was not an Australian citizen, permanent resident, or eligible New Zealand citizen, the applicant did not satisfy the requirements of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, finding that the applicant did not meet the prescribed criteria for the visa sought.