Mutara (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 establish that she was a remaining relative of an Australian relative. The delegate had previously determined that the applicant's father, who was the Australian relative in question, was usually resident outside of Australia, based on the applicant's statement that his location was "unknown" at the time of application. The decision under review was made by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for being a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994. This involved determining if the Australian relative (the applicant's father) was "usually resident in Australia" and if the applicant had no "near relatives" other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal accepted the oral and documentary evidence presented by the applicant and her sisters. This evidence established that the applicant's father held an Australian Resident Return 155 Visa, had been in Australia at certain times, and had expressed a strong desire to return to Australia to live. The Tribunal found that the applicant's earlier statement of her father's location being "unknown" was due to his absence from Australia at that specific time and her desire to provide accurate information. Applying the principles from cases such as *Scargill v MIMIA* and *MIMIA v Hidalgo*, the Tribunal considered both physical residency and intention in assessing "usual residence." Based on the evidence, the Tribunal concluded that the applicant met the criteria under cl 835.212 and cl 835.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the necessary criteria for the Subclass 835 (Remaining Relative) visa.