Jawanting (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to be recognised as a remaining relative of an Australian relative, who in this instance was the applicant's sister, Ms Jaslinda M S JAWANTING, an Australian permanent resident. The decision was made by Senior Member Antoinette Younes of the Migration Review Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 835 visa, specifically whether the applicant was a "remaining relative" of an "Australian relative" at the time of application and at the time of the decision. This required determining if the applicant had no "near relatives" other than those who were usually resident in Australia and held Australian citizenship, permanent residency, or were eligible New Zealand citizens. The Tribunal also considered whether the applicant met the criteria for other visa subclasses, namely Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative).

The Tribunal's reasoning focused on the definition of "near relative" as set out in Regulation 1.15(2) of the Migration Regulations 1994. The applicant had declared her relatives, including her mother and two brothers residing in Malaysia, and her son residing in Canada. The Tribunal found that these individuals constituted "near relatives" who were not usually resident in Australia and did not hold Australian citizenship or permanent residency. Consequently, the applicant did not satisfy the requirement under Regulation 1.15(1)(c) that she and her spouse 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 Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, finding that the applicant did not meet the criteria for a remaining relative of an Australian relative at the relevant times. Furthermore, there was no material before the Tribunal to suggest the applicant met the prescribed criteria for the Subclass 836 or Subclass 838 visas.