LATCHMI (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision not to grant Other Family (Migrant) (Class BO) visas, specifically Subclass 115 (Remaining Relative), to the applicants. The primary applicant claimed to be the remaining relative of an Australian citizen, who was her mother. The core of the dispute revolved around whether the applicants met the prescribed criteria for this visa subclass.

The Tribunal was required to determine if the visa applicants satisfied the definition of a "remaining relative" as defined in the Migration Regulations 1994, specifically in relation to Regulation 1.15. This involved assessing whether the Australian relative was "usually resident" in Australia and whether the applicant and their spouse or de facto partner had no "near relatives" other than those usually resident in Australia and holding Australian citizenship, permanent residency, or eligible New Zealand citizenship.

The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* regarding the meaning of "usually resides," which requires considering both physical residency and intention. The Tribunal found that the Australian relative, the mother, was an Australian citizen and usually resident in Australia, thus satisfying subclauses 1.15(1)(a) and (b). However, the applicants failed to provide information invited by the Tribunal within the prescribed time. Consequently, the Tribunal applied section 359C(1) of the Migration Act 1958, allowing it to make a decision without further information. As the applicants did not provide material to demonstrate they met the criteria, particularly concerning the absence of near relatives not usually resident in Australia, the Tribunal affirmed the decision not to grant the visas.