Beck (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), made by an applicant who claimed to be the remaining relative of his Australian father. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for being a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant's father, an Australian citizen, was "usually resident in Australia" and if the applicant, along with his spouse, had no "near relatives" other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal applied the definitions of "Australian relative" and "remaining relative" from the Migration Regulations. It found that the applicant's father, being an Australian citizen, qualified as an Australian relative. The Tribunal was satisfied, based on the evidence, that the applicant's father was usually resident in Australia, applying the principles from cases such as *Scargill v MIMIA* which consider both physical residency and intention. The Tribunal also considered the definition of "near relative" and the requirement that the applicant have no near relatives outside of Australia who do not meet the specified criteria. The Tribunal respectfully declined to refer the matter to the Minister for Ministerial Intervention, noting that the applicant could make such a request directly. The Tribunal affirmed the decision not to grant the visa.