Lutumailagi (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to establish that they were a remaining relative of their Australian citizen sister. The dispute centred on whether the applicant met the criteria for a remaining relative, particularly concerning the existence of "near relatives" outside of Australia. The decision was made by Member Lilly Mojsin of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the definition of a "remaining relative" as defined in regulation 1.15 of the Migration Regulations 1994. This required assessing whether the applicant and their spouse had any "near relatives" who were not usually resident in Australia and who were not Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal also considered the meaning of "usually resident" in the context of the Australian relative.

The Tribunal's reasoning focused on the definition of "near relative" in regulation 1.15(2). It was established that the applicant's spouse had a father and brother residing in Fiji, who were not usually resident in Australia and did not hold Australian citizenship or permanent residency. The Tribunal applied the principles from cases such as *Scargill v MIMIA* and *MIMIA v Hidalgo* to interpret "usually resident," which requires both physical residency and intention. The Tribunal found that the applicant's spouse's relatives in Fiji constituted "near relatives" for the purposes of the visa application, and as these relatives were not usually resident in Australia and did not meet the specified Australian immigration status, the applicant failed to satisfy the requirements of regulation 1.15(1)(c).

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