Contreras Thais (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 establish that they were a "remaining relative" of their Australian citizen mother, who was considered their "Australian relative" for the purposes of the visa. The core of the dispute revolved around whether the applicant and their spouse had any "near relatives" who were not usually resident in Australia and who were not Australian citizens, permanent residents, or eligible New Zealand citizens.

The legal issues before the court were whether the applicant met the criteria for a Subclass 835 visa, particularly concerning the definition of a "remaining relative" as stipulated in the Migration Regulations 1994. This required the court to determine if the applicant's Australian relative was usually resident in Australia and, crucially, if the applicant and their spouse had any "near relatives" outside of Australia who did not fall within the prescribed exceptions. The court also needed to consider the definition of "near relative" as provided in the regulations.

The court's reasoning focused on the definition of "remaining relative" under regulation 1.15 of the Migration Regulations 1994. It was established that the applicant's mother, being an Australian citizen usually resident in Australia, met the requirements of paragraphs (a) and (b) of regulation 1.15(1). However, the critical factor was paragraph (c), which requires the applicant and their spouse to have no "near relatives" other than those usually resident in Australia and holding Australian citizenship, permanent residency, or eligible New Zealand citizenship. The court found that the applicant had near relatives in Peru, specifically the spouse's family members, who did not meet these criteria. The court applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* regarding the meaning of "usually resident," confirming that physical residency and intention are key elements.

The Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, finding that the applicant did not meet the prescribed criteria due to the presence of near relatives offshore who did not satisfy the exceptions outlined in the regulations.