KOROMA (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 migrate to Australia to care for their mother, who was an Australian citizen. The applicant's minor children, who were under 18 years of age, resided overseas and were not in the applicant's daily care and control. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a remaining relative visa.

The primary legal issue before the Tribunal was whether the applicant qualified as a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This involved assessing whether the applicant's Australian relative (their mother) was usually resident in Australia, and crucially, whether the applicant had any "near relatives" other than those who were usually resident in Australia and held Australian citizenship, permanent residency, or were eligible New Zealand citizens. A specific consideration was the definition of a "near relative" in relation to a child applicant, which includes a child who has not turned 18 and is not wholly or substantially in the daily care and control of the applicant.

The Tribunal affirmed the decision not to grant the visa. It found that the applicant's mother, the Australian relative, was usually resident in Australia. However, the Tribunal determined that the applicant did not satisfy the requirement of having no "near relatives" other than those usually resident in Australia. This was because the applicant's children, who were under 18 and not in the applicant's daily care and control, were considered "near relatives" under the regulations, and these children were not usually resident in Australia. Consequently, the applicant failed to meet the criteria for a remaining relative visa.