Barrick (Migration)

This matter concerned applications for Other Family (Residence) (Class BU) visas, specifically the Subclass 835 (Remaining Relative) visa. The primary applicant, Ryan Anthony Barrick, sought to establish himself as a remaining relative of his Australian citizen mother, Jacquelin F Gabriel. The secondary applicant, Cruz Anthony Barrick, is the primary applicant's son. The core of the dispute revolved around whether the primary applicant met the definition of a "remaining relative" at the time of the decision, particularly in light of his son, who had turned 18 and was deemed by the delegate not to be a dependent child. The decision was made by Joseph Francis, a Member of the Tribunal.

The legal issues before the Tribunal were whether the primary applicant qualified as a "remaining relative" of an "Australian relative" under the Migration Regulations 1994, and consequently, whether the secondary applicant also met the criteria for the visa. Specifically, the Tribunal had to determine if the primary applicant's son, having turned 18 and no longer being considered a dependent, constituted a "near relative" that would disqualify the primary applicant from meeting the "no near relatives" requirement for the visa. The Tribunal also considered the significant delay in processing the applications, noting that a decision made prior to the secondary applicant's 18th birthday would have been subject to less stringent regulations.

The Tribunal reasoned that the delegate's decision to refuse the applications was based on the secondary applicant being over 18 and not a dependent child at the time of the delegate's decision. However, the Tribunal noted that the applications were lodged in 2010 and the delegate's decision was made in 2021, with the secondary applicant turning 18 in November 2016. The Tribunal concluded that had a decision been made before November 2016, the secondary applicant would have been under 18 and likely considered a dependent, meaning less onerous regulations would have applied. Consequently, the Tribunal found that the primary applicant met the criteria under Regulation 1.15 for the purpose of clause 835.221, and the secondary applicant met the criteria under Regulation 1.2(1)(b) for the purpose of clause 835.321.

The Tribunal remitted both visa applications for reconsideration. The direction was that the first named applicant, Ryan Anthony Barrick, meets the criteria for a Subclass 835 (Remaining Relative) visa under Regulation 1.15 for the purpose of clause 835.221 of Schedule 2 to the Regulations. Furthermore, the second named applicant, Cruz Anthony Barrick, meets the criteria for a Subclass 835 (Remaining Relative) visa under Regulation 1.2(1)(b) for the purpose of clause 835.321 of Schedule 2 to the Regulations.