Les (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative visa), before the Tribunal. The applicant sought to establish that they were a "remaining relative" of an Australian citizen, their sister, Ms Livia Miu. The core of the dispute revolved around whether the applicant met the criteria for a remaining relative as defined by the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant satisfied the definition of a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This involved assessing whether the Australian relative (the applicant's sister) was a sibling of the applicant, whether she was usually resident in Australia, and crucially, whether the applicant and their spouse or de facto partner had any "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal found that the Australian relative was indeed the applicant's sister, satisfying regulation 1.15(1)(a). Furthermore, the Tribunal was satisfied that the sister was usually resident in Australia, applying the principles from cases such as *Scargill v MIMIA* which consider both physical residency and intention. However, the Tribunal's decision was affirmed because the applicant's parents, who were living in Romania and not usually resident in Australia, were considered "near relatives" under regulation 1.15(2). As these near relatives were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens, the applicant failed to meet the requirements of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa.