Bates (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 migrate to Australia based on being the remaining relative of Ms Katrina Joanne Carroll, who was an Australian citizen. The dispute arose from the applicant's eligibility for the visa, with the Tribunal ultimately concluding that the matter should be remitted for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the criteria to be considered a 'remaining relative' of an 'Australian relative' as defined by the Migration Regulations 1994. This involved determining if the applicant's sister, Ms Carroll, was an 'Australian relative' and if the applicant, along with her spouse or de facto partner, had no 'near relatives' other than those usually resident in Australia and holding Australian citizenship or permanent residency. The Tribunal also considered the definition of 'usually resident' in relation to Ms Carroll.

The Tribunal applied the definitions of 'Australian relative' and 'remaining relative' from the Migration Regulations. It was satisfied that Ms Carroll, as the applicant's sister and an Australian citizen, met the criteria of being an 'Australian relative' and was usually resident in Australia, drawing on established case law regarding the dual factors of physical residency and intention. The Tribunal noted that the applicant's daughter had withdrawn from a visa application and was no longer a dependent child, but had since been granted Australian permanent residency. While not directly germane to the visa criteria, the Tribunal also drew attention to the applicant's significant role in caring for her parents and her work in the childcare and disability support sectors.

The Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria for a Subclass 835 (Remaining Relative) visa, specifically referencing clauses 835.212 and 835.221 of Schedule 2 to the Regulations.