Gower (Migration)

This matter concerned an appeal by two applicants, a mother and her daughter, against a decision to refuse them an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicants sought to be sponsored by the mother's daughter and the sister of the second applicant, who was an Australian resident. The core of the dispute was whether the first applicant met the definition of a "remaining relative" of an "Australian relative" as required by the Migration Regulations 1994.

The tribunal was required to determine whether the first applicant satisfied the criteria for being a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. Specifically, the tribunal had to consider whether the Australian relative (the daughter) was a parent, brother, sister, step-parent, step-brother, or step-sister of the applicant, and whether the applicant 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 also considered whether the second applicant met the same criteria.

The tribunal reasoned that the definition of a "remaining relative" under regulation 1.15(1)(a) requires the Australian relative to be a parent, brother, sister, step-parent, step-brother, or step-sister of the applicant. As the Australian relative in this case was the applicant's daughter, this limb of the definition was not met. Furthermore, the tribunal found that the first applicant had near relatives, specifically siblings, residing in the Solomon Islands, who were not usually resident in Australia and did not meet the criteria of being Australian citizens or permanent residents. Consequently, regulation 1.15(1)(c) was not satisfied. The tribunal also noted that the second applicant did not meet regulation 1.15(1)(c) because her parent (the first applicant) was a near relative not ordinarily resident in Australia.

The tribunal affirmed the decision not to grant the applicants the Subclass 835 visas, concluding that they did not meet the requirements of regulation 1.15 and therefore did not satisfy clauses 835.212 and 835.221 of the Migration Regulations 1994.