Habib (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought review of a decision affirming the refusal of his visa application. The dispute centred on the applicant's declarations regarding his biological father and step-siblings, and whether these declarations constituted false or misleading information, or involved an element of fraud or deception. The decision was made by Member Lilly Mojsin of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had satisfied the criteria for a Remaining Relative visa, particularly concerning the definition of "near relative" and the requirement that the applicant have no near relatives other than those usually resident in Australia and who are Australian citizens, permanent residents, or eligible New Zealand citizens. A key issue was whether the applicant's biological father, despite being estranged and having allegedly abandoned the applicant, qualified as a "near relative" for the purposes of the visa application, and whether the applicant had made full and frank disclosure about his father's presence in Australia and his relationship with him.

The Tribunal affirmed the decision not to grant the visa. Member Mojsin considered the applicant's declarations that he had no knowledge of his father's whereabouts or details of his father's new family due to long-term estrangement. However, departmental records indicated the applicant's father had been in Australia during specific periods and had applied for visitor visas, stating he would reside with his daughter, who was also his contact person. While the applicant's migration agent suggested an error in transcribing information, the Tribunal noted that the applicant's father had been in Australia and had contact with his daughter during his visits. The Tribunal applied the definition of "near relative" under Regulation 1.15 of the Migration Regulations 1994, which includes parents. Despite the applicant's claims of estrangement and lack of contact, the biological father remained a "near relative" under the regulations. The Tribunal also noted that the applicant had referred his application to the Minister, citing his need to remain in Australia to care for his mother, but this referral did not alter the outcome of the visa refusal.