FAKALELU (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The primary applicant, Ms. Mele Funaki Fakalelu, sought to establish that she was a "remaining relative" of her sister, Ms. Meliame Fanaafi Hema, who is an Australian citizen. The Tribunal was required to determine whether the applicant met the criteria for this visa subclass.

The central 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. This required the Tribunal to assess whether the applicant's Australian relative (her sister) was usually resident in Australia, and crucially, whether the applicant and her spouse had no "near relatives" other than those who were usually resident in Australia and were Australian citizens or permanent residents. The Tribunal also considered, and dismissed, claims for Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative) visas due to a lack of evidence regarding dependency and carer requirements.

The Tribunal affirmed the decision not to grant the visa. It found that while the applicant's sister was an Australian citizen and therefore an "Australian relative," and that the sister was indeed usually resident in Australia, the applicant failed to demonstrate that she had no "near relatives" other than those who met the specified criteria. The Tribunal noted that the applicant's parents in Australia had applied for permanent visas, implying they were not yet permanent residents or citizens at the time of the application, and that the applicant had other relatives in her home country and a third country. The Tribunal applied the principles from cases such as *Scargill v MIMIA* and *Ignatious v MIMIA* regarding the meaning of "usually resides," which involves both physical residency and intention. The Tribunal concluded that the applicant did not meet the requirements of regulation 1.15(1)(c) concerning the absence of near relatives.