DAVENPORT (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 115 (Remaining Relative) visa. The applicant sought this visa on the basis that she was the remaining relative of her brother, Mr. Paul Anthony Pryce, who is an eligible New Zealand citizen and therefore an "Australian relative" for the purposes of the application.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "remaining relative" as defined in regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to determine if the Australian relative was a sibling of the applicant, if that relative was usually resident in Australia, and if the applicant and her spouse or de facto partner 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 Tribunal found that the Australian relative was indeed the applicant's brother, satisfying paragraph (a) of the definition. Applying the principles from cases such as *Scargill v MIMIA* and *MIMIA v Hidalgo*, the Tribunal was satisfied that the Australian relative was usually resident in Australia, considering both physical residency and intention. The Tribunal's decision was to affirm the refusal of the visa, indicating that the applicant had not satisfied all the criteria for a Subclass 115 visa.