Culas (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Mr Felix Gerald Culas, a Malaysian national, an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). Mr Culas sought to be recognised as a remaining relative of his sister, Ms Mary T Shiamala M Culas, who is an Australian permanent resident.

The primary legal issue before the Tribunal was whether Mr Culas satisfied the criteria for a Subclass 835 visa, specifically whether he was a "remaining relative" of an "Australian relative" at the time of his application and at the time of the decision. This required determining if his sister met the definition of an Australian relative, and crucially, if Mr Culas had any "near relatives" other than those who were usually resident in Australia and held Australian citizenship or permanent residency.

The Tribunal accepted that Ms Culas was Mr Culas's sister and was usually resident in Australia, thus satisfying the criteria for an Australian relative. However, the Tribunal found that Mr Culas had three siblings residing in New Zealand who were not Australian citizens or permanent residents. As these siblings were considered "near relatives" under regulation 1.15(2) of the Migration Regulations 1994, and they did not meet the exception criteria of being usually resident in Australia and holding Australian citizenship or permanent residency, Mr Culas failed to satisfy the "no near relatives" requirement of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application.