Mason (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought this visa on the basis that she was the remaining relative of her Australian citizen sister. The decision was made by Maxina Martellotta, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" under the Migration Regulations 1994. This involved determining if the applicant and the Australian resident were "sisters" for the purposes of the regulations, and whether the Australian resident was "usually resident in Australia." The Tribunal also needed to consider the applicant's familial circumstances, particularly the unknown identity and circumstances of her biological father, in relation to the definition of "near relatives."

The Tribunal reasoned that the definition of "sister" in the context of the regulations should be interpreted expansively, as supported by previous case law such as *Mercado v MIAC* and *Claridge v MIBP*, which allowed for half-siblings to be considered brothers or sisters. Based on the evidence of birth certificates and oral testimony, the Tribunal was satisfied that the applicant and the Australian resident were half-sisters, thus meeting the requirement of being a sister to an Australian relative. The Tribunal concluded that the application should be remitted for reconsideration, with a direction that the applicant met the criteria under cl 835.212 and cl 835.221 of Schedule 2 to the Regulations.