Iwanenko (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa, by a 90-year-old US national. The applicant sought to migrate to Australia to live with her sister-in-law, who was an Australian citizen and the widow of the applicant's deceased brother. The Tribunal was required to determine whether the applicant met the criteria for a remaining relative visa and the associated sponsorship requirements.

The primary 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 she was sponsored by a "settled" Australian relative in accordance with clause 835.213. Specifically, the Tribunal had to consider the definition of "Australian relative" and "near relative" within the regulations, and whether the applicant's sister-in-law, as a sponsor, satisfied the requirements for sponsorship when her husband, the applicant's brother, was deceased.

The Tribunal reasoned that for the applicant to be considered a remaining relative, she must have no near relatives other than those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens. The evidence indicated that the applicant's brother, who was an Australian citizen, had passed away. Consequently, the sponsor, the applicant's sister-in-law, was not considered an "Australian relative" as defined by the regulations, as she was not a parent, brother, or sister of the applicant. Therefore, the Tribunal found that the applicant did not satisfy the sponsorship requirements under clause 835.213.

Despite affirming the decision not to grant the visa based on the regulatory requirements, the Tribunal noted the applicant's advanced age, her apparent absence of other living close relatives in her country of nationality, her ties to Australia, and the presence of her widowed sister-in-law. In light of these circumstances and the ministerial guidelines relating to discretionary powers, the Tribunal considered that the case should be referred to the Department for consideration by the Minister.