Lai (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by an individual seeking review of a decision to refuse an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). The applicant claimed to be the remaining relative of Ms Mien Thi Nguyen, who was identified as their Australian relative. The AAT affirmed the decision under review.

The primary legal issues before the Tribunal were whether the applicant met the definition of a "remaining relative" of an "Australian relative" at the time of application and decision, and whether any limitations on sponsorships for such visas applied. Specifically, the Tribunal had to determine if the applicant's mother, Ms Nguyen, was an Australian relative, if she was usually resident in Australia, and if the applicant and their spouse had any "near relatives" other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal was satisfied that Ms Mien Thi Nguyen was the applicant's mother and an Australian citizen, thus meeting the definition of an Australian relative. The Tribunal also considered the definition of a "remaining relative" under regulation 1.15 of the Migration Regulations 1994, which requires the Australian relative to be usually resident in Australia and the applicant, along with their spouse or de facto partner, to have no "near relatives" except those who are usually resident in Australia and hold Australian citizenship, permanent residency, or eligible New Zealand citizenship. The Tribunal affirmed the decision not to grant the visa, implying that the applicant failed to satisfy one or more of these criteria, or that a sponsorship limitation under regulation 1.20K applied.