Huynh (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought this visa on the basis that they were the remaining relative of their mother, who was an Australian permanent resident and usually residing in Australia. The Tribunal was required to determine whether the applicant met the criteria for a Subclass 835 visa, particularly concerning the definition of a "remaining relative" and the absence of other "near relatives" not residing in Australia.

The central legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" under regulation 1.15 of the Migration Regulations 1994, and whether the applicant, along with their spouse or de facto partner, had no "near relatives" other than those permitted by the regulations. This involved interpreting the definitions of "Australian relative" and "near relative" and applying them to the facts presented, including the applicant's familial relationships and the residency status of those relatives.

The Tribunal found that the applicant's mother, being an Australian permanent resident and usually residing in Australia, satisfied the criteria for being an "Australian relative" and met the residency requirements under regulation 1.15(1)(b). The Tribunal also concluded that the applicant met the requirement of being a parent or sibling of the Australian relative under regulation 1.15(1)(a). Crucially, the Tribunal determined that the applicant met the criteria under clauses 835.212 and 835.221 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant had met these specific criteria for the Subclass 835 visa.