De'Laney (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, Dorothy De’Laney. The primary dispute revolved around whether the applicant had any "near relatives" not usually resident in Australia and who were not Australian citizens, permanent residents, or eligible New Zealand citizens, as required by regulation 1.15(1)(c) of the Migration Regulations 1994. The Administrative Appeals Tribunal, constituted by Michelle Grau, was tasked with determining this issue.

The central legal question before the Tribunal was whether the applicant met the definition of a "remaining relative" under regulation 1.15(1)(c), specifically concerning the existence and location of their biological father. The delegate had refused the application on the basis that the applicant had a biological father whose whereabouts were unknown, thus failing to satisfy the requirement of having no near relatives other than those usually resident in Australia and holding Australian citizenship or permanent residency. The applicant provided evidence that his biological father had left before his birth, his name was Mark, and his whereabouts were unknown, although his mother had since identified his step-mother and step-father and had learned that his biological father had moved to Australia approximately 24 years prior.

The Tribunal considered the evidence presented, including statements from the applicant and his mother, regarding the identity and potential location of the applicant's biological father. The Tribunal found that the applicant's mother had provided sufficient information to suggest that the biological father, Mark Hughes, was likely residing in Australia. Given this finding, the Tribunal concluded that the applicant likely met the criteria under regulation 1.15(1)(c) regarding the absence of near relatives outside of Australia. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under clause 835.212 of Schedule 2 to the Regulations.