BHARDWAJ (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 be sponsored by her daughter, who was an Australian permanent resident. The dispute arose because the applicant filed the incorrect type of application, rendering her ineligible for the visa. The decision under review was made by the Administrative Appeals Tribunal, presided over by Member Hugh Sanderson.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "remaining relative" of an "Australian relative" as required by the Migration Regulations 1994. This involved determining if the applicant satisfied the criteria outlined in clauses 835.212 and 835.221, which necessitate being a remaining relative at both the time of application and the time of decision. Specifically, the Tribunal had to consider the definitions of "Australian relative" and "remaining relative" as set out in the Regulations.

The Tribunal reasoned that to qualify as a remaining relative under regulation 1.15(1)(a), the Australian relative must be a parent, brother, sister, step-brother, or step-sister of the applicant. In this case, the Australian relative was the applicant's daughter, and a daughter is not included in the specified categories of relatives for this purpose. Furthermore, regulation 1.15(1)(c) requires that the applicant have no "near relatives" other than those who are usually resident in Australia and hold Australian citizenship or permanent residency. The applicant stated she had siblings residing in India, who were considered "near relatives" under regulation 1.15(2), thus failing to meet this criterion.

Consequently, the Tribunal concluded that the applicant did not satisfy the requirements of being a remaining relative of an Australian relative at the relevant times. The Tribunal affirmed the decision not to grant the visa, noting that while the applicant might have been given poor advice, it had no option but to uphold the refusal based on the regulatory framework.