Kulwant Kaur (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Ms Kulwant Kaur, a 61-year-old national of India, an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. Ms Kaur had made multiple visits to Australia on visitor visas between 2016 and 2019. Her application for the Subclass 835 visa was sponsored by her daughter-in-law, Ms Ranbir Kaur, who is an Australian citizen. The Tribunal was required to determine whether Ms Kaur met the criteria for a Subclass 835 visa, particularly the definition of a "remaining relative" under the Migration Regulations 1994 (Cth).

The primary legal issues before the Tribunal were whether Ms Kaur qualified as a "remaining relative" of an Australian citizen, as defined by regulation 1.15(1)(a) of the Migration Regulations, and whether she had any "near relatives" outside of Australia who were not Australian citizens or permanent residents, as required by regulation 1.15(1)(c). The definition of "remaining relative" requires the Australian relative to be a parent, brother, sister, step-brother, or step-sister of the applicant. Furthermore, the applicant must have no "near relatives" other than those usually resident in Australia and who are Australian citizens, permanent residents, or eligible New Zealand citizens. A "near relative" is defined to include a child of the applicant who is over 18 and not a dependent child.

The Tribunal reasoned that Ms Kaur did not satisfy the definition of a "remaining relative" because her son, Mr Kulwinder Singh, who is an Australian citizen, is not her parent, brother, sister, step-brother, or step-sister. The Tribunal also found that Ms Kaur had a "near relative" outside of Australia, namely her younger son, Mr Palwinder Singh, who resides in the United States, is married, and has lived independently for many years, thus not being a dependent child. As Mr Palwinder Singh is over 18 and not a dependent child, he falls within the definition of a "near relative" under regulation 1.15(2)(b)(i). Consequently, Ms Kaur failed to meet the requirement of having no near relatives other than those in Australia who are Australian citizens or permanent residents.

The Tribunal affirmed the delegate's decision to refuse the grant of the Subclass 835 visa.