Dauniseka (Migration)

This matter concerned an application for review of a decision to refuse an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant, a citizen of Fiji, sought to migrate to Australia to care for his cousin, who was an Australian citizen. The applicant had been in Australia on a bridging visa since his tourist visa ceased in 2015. The sponsor, the applicant's cousin, was an Australian citizen who had been attributed an impairment rating due to schizophrenia and lower back pain, and claimed her own children were unable to care for her.

The primary legal issue before the Tribunal was whether the applicant was a "close relative" of the sponsor within the meaning of the Migration Act and its associated Regulations. The Tribunal considered whether the familial relationship, described by the parties as "sister cousins" and considered siblings under Fijian custom and culture, met the legislative definition of a "close relative." The Tribunal also examined whether the applicant claimed to be the carer of an Australian relative as required by the visa subclass criteria.

The Tribunal reasoned that while the applicant and sponsor provided evidence of their cousin relationship, this relationship did not satisfy the definition of "close relative" as set out in Regulation 1.03 of the Migration Regulations. This definition specifically lists partners, children, parents, brothers, and sisters (and their step equivalents) as close relatives. The Tribunal acknowledged the cultural understanding of the parties as siblings but concluded that this did not override the statutory definition. As the applicant was not a close relative of the sponsor, he did not meet the criteria for the visa.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant the Other Family (Residence) (Class BU) visa. The Tribunal also noted that there was no evidence before it that the applicant met the criteria for any other visa class.