Malunga (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The applicant sought to migrate to Australia based on their relationship with Hellen Malunga, an Australian citizen. The dispute centred on whether the applicant met the criteria for a "remaining relative" under the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied the definition of a "remaining relative" as set out in regulation 1.15 of the Migration Regulations 1994. This involved assessing whether the applicant had any "near relatives" other than those who were usually resident in Australia and held Australian citizenship, permanent residency, or were eligible New Zealand citizens. The definition of "near relative" under regulation 1.15(2) was also a key consideration.

The Tribunal affirmed the decision not to grant the visa. The applicant claimed Hellen Malunga as their Australian relative, who was indeed their sister and an Australian citizen. However, the applicant also identified a half-sister, Marry Dzingwa, who resided in Ireland. The Tribunal found that Marry Dzingwa, born in 1976, was an adult and therefore a "near relative" under regulation 1.15(2). As Marry Dzingwa was not usually resident in Australia and did not meet the specified criteria for an exception, the applicant failed to satisfy the requirement under regulation 1.15(1)(c) that they have no near relatives other than those usually resident in Australia and holding Australian citizenship or residency.