De Silva (Migration)

This matter concerned an application for a Subclass 835 (Remaining Relative) visa. The applicant sought to establish that they were a "remaining relative" of an Australian citizen, who was their brother. The decision-maker concluded that the applicant did not meet the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the definition of a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant, and their 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, as required by regulation 1.15(1)(c).

The Tribunal reasoned that while the applicant had an Australian citizen brother, who was a relative, the applicant also had relatives residing in Germany. These relatives in Germany were considered "near relatives" under regulation 1.15(2) and were not usually resident in Australia, nor were they Australian citizens, permanent residents, or eligible New Zealand citizens. Consequently, the applicant failed to satisfy the requirement under regulation 1.15(1)(c) that they have no near relatives other than those meeting the specified criteria in Australia.

The Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, finding that the applicant did not meet the prescribed criteria.