Hassanzadeh (Migration)

This matter concerned an appeal by a visa applicant against the decision to refuse her an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to be sponsored by a relative who was an Australian citizen. The central dispute revolved around whether the sponsor qualified as an "Australian relative" of the applicant as defined by the relevant migration regulations.

The primary legal issue before the Tribunal was to determine if the sponsor was an "Australian relative" of the visa applicant, as defined in regulation 1.03 of the Migration Regulations 1994. This definition requires a relative to be a close relative or fall within a specified list of relationships, including grandparent, grandchild, aunt, uncle, niece, or nephew. The Tribunal had to ascertain the precise familial relationship between the applicant and the sponsor based on the evidence provided.

The Tribunal's reasoning focused on the definition of "relative" in the Regulations. Evidence presented, including a family tree, established that the sponsor and the applicant's mother were first cousins. Consequently, the sponsor and the visa applicant were related as first cousins once removed. The Tribunal concluded that this relationship did not fall within the definition of a "close relative" or the specifically enumerated relationships in regulation 1.03(b). Therefore, the sponsor was not an "Australian relative" for the purposes of the Carer visa criteria.

The Tribunal affirmed the decision not to grant the visa. While sympathetic to the sponsor's deteriorating medical condition and the long wait for a decision, the Tribunal declined to refer the matter to the Minister for consideration, though it encouraged the sponsor to do so. The Tribunal found that the visa applicant did not meet the criteria for the Subclass 116 visa due to the lack of an eligible Australian relative.