Moshfiq (Migration)

This matter concerned a review by the Tribunal of a decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The visa applicant claimed to be the remaining relative of her daughter, Benafsha Shakuri, who was an Australian permanent resident at the time of the application. The applicant was sponsored by her son-in-law, Mr. Raffio Moshfiq, who was an Australian citizen.

The primary legal issue before the Tribunal was whether the visa applicant met the definition of a "remaining relative" of an "Australian relative" as required by the Migration Regulations 1994. This involved determining if the Australian relative, Ms. Shakuri, was a specified relative of the visa applicant under regulation 1.15(1)(a) of the Regulations, and whether the applicant had any "near relatives" outside of Australia who did not meet the specified criteria.

The Tribunal reasoned that to satisfy regulation 1.15(1)(a), the Australian relative must be a parent, brother, sister, step-brother, or step-sister of the visa applicant. In this case, the Australian relative, Ms. Shakuri, was the child of the visa applicant, which did not fall within the specified relationships under that provision. Consequently, the Tribunal found that the visa applicant did not meet the criteria for being a remaining relative of an Australian relative at the time of application, and therefore did not satisfy clause 115.211 of the Regulations. The Tribunal noted that the delegate had also found the applicant did not meet other criteria, but did not consider these further.

The Tribunal affirmed the decision not to grant the visa applicant the Subclass 115 visa.