Huynh (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) regarding a Subclass 115 (Remaining Relative) visa application. The visa applicant sought to migrate to Australia as the remaining relative of her brother, who was an Australian citizen. The core dispute revolved around whether the visa applicant met the criteria for the visa, particularly the definition of a "remaining relative" and the absence of "near relatives" in Vietnam.

The Tribunal was required to determine if the visa applicant was a "remaining relative" of an "Australian relative" at the time of her application and continued to be so at the time of the decision. This involved assessing whether the review applicant (the brother) was an Australian relative, whether the visa applicant and the review applicant were biological siblings, and whether the visa applicant had any "near relatives" other than those in Australia. The Tribunal also considered whether the circumstances warranted a referral to the Minister for intervention under section 351 of the Migration Act 1958 (Cth).

The Tribunal found that the review applicant was an Australian citizen and that he and the visa applicant were biological siblings. However, the Tribunal concluded that the visa applicant did not meet the criteria for a Subclass 115 visa because she did not satisfy the definition of a "remaining relative" as required by the regulations. The Tribunal also examined the possibility of granting a Subclass 114 (Aged Dependent Relative) or Subclass 116 (Carer) visa, finding the applicant ineligible for both due to age and a lack of evidence regarding her role as a carer, respectively. While acknowledging the compassionate circumstances presented by the review applicant, including his mother's medical conditions and the financial and emotional strain on his family, the Tribunal determined that these circumstances did not meet the threshold for ministerial intervention under section 351.

Consequently, the Tribunal affirmed the decision under review, finding that the visa applicant did not meet the criteria for a Subclass 115 visa, nor for the other considered visa subclasses. The request for referral to the Minister for intervention was not granted.