EL DANNAOUI (Migration)

The Administrative Appeals Tribunal considered the case of EL DANNAOUI concerning an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The applicant sought this visa on the basis that they were the remaining relative of their sister, who is an Australian citizen. The central dispute revolved around whether the applicant met the criteria of being a "remaining relative" under the Migration Regulations 1994, particularly concerning the existence of "near relatives" outside of Australia.

The primary legal issue before the Tribunal was to determine if the visa applicant qualified as a "remaining relative" of an Australian relative, as defined by the Migration Regulations. This required assessing whether the applicant, and their spouse or de facto partner, had any "near relatives" other than those who were usually resident in Australia and held Australian citizenship, permanent residency, or eligible New Zealand citizenship. The definition of "near relative" was critical, encompassing parents, siblings, step-parents, step-siblings, and children (or step-children) who are either over 18 and not dependent, or under 18 and not wholly or substantially in the daily care and control of the applicant or their partner.

The Tribunal affirmed the decision not to grant the visa. The reasoning focused on the definition of "near relative" within Regulation 1.15(2). The Tribunal found that the applicant's children, who were in the custody and care of their former spouse, were considered "near relatives" under Regulation 1.15(2)(b)(ii). As these children were not wholly or substantially in the daily care and control of the applicant or their current partner, and were not residing in Australia, the applicant was deemed to have near relatives outside of Australia who did not meet the criteria for exemption. Consequently, the applicant failed to satisfy the requirement under Regulation 1.15(1)(c) that they have no near relatives other than those usually resident in Australia and holding eligible Australian status.