Mohamed Hassan (Migration)

This matter concerned an appeal by a visa applicant seeking an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The visa applicant claimed to be the remaining relative of an Australian citizen brother. The decision under review affirmed the refusal of the visa. The case was heard by Senior Member Justin Owen of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the visa applicant met the definition of a "remaining relative" as defined in regulation 1.15 of the Migration Regulations 1994. This required determining if the Australian relative was "usually resident in Australia" and if the visa applicant, along with their spouse or de facto partner, had no "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal accepted that the Australian relative, the brother of the visa applicant, was a parent or sibling as required by regulation 1.15(1)(a). It also found, applying the principles from *Scargill v MIMIA* and other cases, that the Australian relative was usually resident in Australia, having lived there for over twenty-five years. However, the Tribunal noted that the visa applicant and their secondary applicants were dependent on the Australian relative for food, clothing, and shelter to a greater extent than any other individual. Despite affirming the decision not to grant the visa, the Tribunal considered the unique or exceptional circumstances of the case and, having regard to ministerial guidelines, decided to refer the matter to the Minister for consideration under section 351 of the Migration Act 1958, which allows the Minister to substitute a more favourable decision if it is in the public interest.