Liaw (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant claimed to be the remaining relative of an Australian relative, identified as their brother, Johnson Albert Liaw, who held Australian permanent residency. The decision was made by Maxina Martellotta, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" under the Migration Regulations 1994. This required determining if the Australian relative was indeed the applicant's brother, if that Australian relative was "usually resident in Australia," and if the applicant, along with 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 found that the applicant's brother, Johnson Albert Liaw, was an Australian permanent resident and therefore an "Australian relative" for the purposes of the visa application. The Tribunal also satisfied itself that the relationship criteria under regulation 1.15(1)(a) were met, as Johnson Albert Liaw was the applicant's brother. However, the Tribunal did not make a final determination on the remaining criteria, specifically concerning whether the Australian relative was "usually resident in Australia" and the absence of other "near relatives" outside of Australia. The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* regarding the dual factors of physical residency and intention in determining "usual residence."

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl 835.212 and cl 835.221 of Schedule 2 to the Regulations. This indicated that while the initial relationship and Australian relative status were established, further assessment was required on the remaining criteria for the Subclass 835 visa.