BILLANES (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), before the Administrative Appeals Tribunal. The applicant sought to migrate to Australia as the remaining relative of his sister, who was an Australian citizen usually resident in Australia. The applicant contended that his brother, who resided in the Philippines and had significant health issues, was his only near relative outside of Australia.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "remaining relative" as prescribed by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant, together with his spouse, had no "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" under the regulations includes a brother or sister.

The Tribunal reasoned that the applicant's brother in the Philippines, who was not usually resident in Australia and did not hold Australian citizenship or permanent residency, constituted a "near relative" for the purposes of the visa criteria. The Tribunal noted that the applicant had not satisfied the requirement that he and his spouse have no near relatives other than those who met the specified Australian residency and citizenship criteria. Consequently, the Tribunal affirmed the decision not to grant the visa, finding that the applicant did not meet the prescribed criteria for a Subclass 835 visa.