Luong (Migration)

The applicant sought review of a decision by the Migration Review Tribunal (MRT) to affirm the refusal of an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The core of the dispute concerned whether the applicant qualified as a "remaining relative" under the relevant migration regulations.

The primary legal issue before the Tribunal was to determine whether the applicant was the "remaining relative" of an Australian relative, as defined by the migration legislation. This required an assessment of the applicant's family relationships and the immigration status of those relatives, particularly in light of the whereabouts and relationship status of the applicant's biological father.

The Tribunal reasoned that for the applicant to be considered a "remaining relative," they must have no near relatives other than Australian citizens or permanent residents. While the applicant's mother and sister were Australian permanent residents, their biological father was identified as a near relative. Crucially, the father's whereabouts were unknown, and there was no contact or established relationship between the applicant and the father. The Tribunal concluded that the existence of this near relative, even with unknown whereabouts and no contact, meant the applicant did not satisfy the definition of a "remaining relative" for the purposes of the Subclass 835 visa.

The Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, finding that the applicant did not meet the prescribed criteria. No material was presented to suggest the applicant met the criteria for any other visa subclasses.