LIM (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant failed to attend a hearing before the Tribunal, which led to the Tribunal making a decision without further action to enable the applicant's appearance. The applicant's relatives reside in Malaysia, which was a significant factor in the Tribunal's determination.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 835 visa, particularly as defined by Regulation 1.15 of the Migration Regulations 1994. This involved assessing whether the applicant was a "remaining relative" of an "Australian relative" and whether 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 reasoned that while the Australian relative was indeed a sister of the applicant and usually resident in Australia, satisfying subclauses (a) and (b) of Regulation 1.15(1), the applicant failed to satisfy subclause (1)(c). This subclause requires that the applicant and their spouse or de facto partner have no "near relatives" except those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens. As the applicant had relatives residing in Malaysia who did not meet these criteria, the applicant did not meet the definition of a "remaining relative" under Regulation 1.15. The Tribunal affirmed the decision not to grant the visa.