Indrawan (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), made by an applicant sponsored by his sister, an Australian citizen. The applicant, a former Australian permanent resident, had lodged the application after arriving in Australia on a visitor visa. The Departmental delegate refused the visa, finding that the applicant did not meet the definition of a "remaining relative" under the Migration Regulations 1994. The delegate specifically noted a lack of evidence that the applicant's son, who resided offshore, was in his daily care and control, and therefore concluded the applicant had a near relative residing overseas who was not an Australian citizen, permanent resident, or eligible New Zealand citizen.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a "remaining relative" as defined in Regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant had any near relatives other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. A key aspect of this determination involved assessing whether the applicant's 12-year-old son, who lived in Indonesia with his mother, was "wholly or substantially in the daily care and control of the applicant" as per Regulation 1.15(2)(b)(ii).

The Tribunal affirmed the delegate's decision, finding that the applicant had not provided sufficient evidence to demonstrate that his son was wholly or substantially in his daily care and control. Despite the applicant's claims of joint custody and a parenting plan, the evidence indicated the child resided offshore with his mother, who was employed and financially independent. The Tribunal concluded that the son was a near relative residing overseas who did not meet the criteria of being an Australian citizen, permanent resident, or eligible New Zealand citizen. Consequently, the applicant failed to satisfy the requirement under Regulation 1.15(1)(c) that he and his spouse or de facto partner have no near relatives other than those meeting specific Australian residency and citizenship criteria. The Tribunal also noted that the applicant did not qualify for an Aged Dependent Relative visa due to a lack of evidence of dependency.