Moustouhas (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 migrate to Australia as the remaining relative of their Australian citizen mother. A key issue in the application related to the applicant's biological father, who was offshore in Greece and with whom the applicant had had no contact for over seven years. The Tribunal was required to determine whether the applicant met the criteria for a Subclass 835 visa, particularly concerning the definition of "near relatives" and the presumption of death or the benefit of the doubt in circumstances where a relative's whereabouts are unknown.

The Tribunal considered the definition of "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This definition requires, among other things, that the applicant and their spouse or de facto partner have no "near relatives" other than those usually resident in Australia and who are Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal noted that the applicant's mother, the Australian relative, was usually resident in Australia, satisfying one limb of the test. The central difficulty lay in the applicant's biological father, who was a "near relative" but was offshore and untraceable. The Tribunal acknowledged the common law presumption of death and the principle of giving the benefit of the doubt in migration matters.

Ultimately, the Tribunal found that the applicant had provided sufficient evidence to satisfy the criteria for the visa, particularly in relation to the untraceable father. The Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 835.212 and 835.221 of Schedule 2 to the Regulations. This indicated that the Tribunal was satisfied that the applicant had no near relatives other than those in Australia, or that the circumstances surrounding the offshore father warranted the application proceeding.