Macleod (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 an Australian relative, Mr Peter MacLeod, who is the applicant's father and an Australian permanent resident. The dispute centred on whether the applicant met the criteria for a "remaining relative" as defined by the Migration Regulations 1994. The decision was made by David Crawshay, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant qualified as a "remaining relative" of an "Australian relative" at the time of application and decision, as required by clauses 835.212 and 835.221 of the Regulations. This involved interpreting the definition of "remaining relative" in regulation 1.15, particularly the requirement that the applicant and their spouse or de facto partner must have no "near relatives" other than those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal also had to consider the definition of "near relative" in regulation 1.15(2).

The Tribunal affirmed the delegate's decision to refuse the visa. The delegate's decision was based on the applicant's own Form 47OF application, which listed the applicant's brother, Mr Kieran Alexander MacLeod, as residing in Canada and not being an Australian citizen, permanent resident, or New Zealand citizen. Department records confirmed that Mr Kieran MacLeod was not usually resident in Australia and did not hold Australian citizenship or permanent residency. Regulation 1.15(1)(c) requires that an applicant 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 a brother residing offshore who did not meet these criteria, the applicant failed to satisfy this requirement. The Tribunal also noted, in a separate consideration, that the applicant was not eligible for a Subclass 838 visa as they were not old enough to be granted an age pension.