Kong (Migration)

This matter concerned a review of a decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The visa applicant claimed to be the remaining relative of an Australian citizen, who was her sister. The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 115 visa.

The primary legal issues before the Tribunal were whether the visa applicant was a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994. This involved assessing whether the Australian relative was "usually resident in Australia" and whether the visa applicant, along with their spouse or de facto partner, had no "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal also needed to confirm the familial relationship between the visa applicant and the Australian relative.

The Tribunal found that the visa applicant and the Australian relative were biological sisters, satisfying the requirement that the Australian relative be a parent or sibling of the visa applicant. The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* to determine that the Australian relative was usually resident in Australia, considering both physical residency and intention. However, the decision text does not elaborate on the assessment of whether the visa applicant had any "near relatives" outside of Australia, which is a crucial component of the "remaining relative" definition.

Ultimately, the Tribunal affirmed the decision not to grant the visa applicant the Subclass 115 visa.