Nguyen (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought review of a decision concerning their eligibility for this visa, which requires the applicant to have no 'near relatives'.

The central legal issue before the Tribunal was whether the applicant's minor child, who was not in the applicant's daily care and control at the time of the Department's decision, constituted a 'near relative' for the purposes of the regulations. The Tribunal also had to consider the effect of a subsequent improvement in the applicant's relationship with their partner and the applicant gaining full custody and daily care of the child.

The Tribunal reasoned that while the child was a 'near relative' at the time of the initial decision, the circumstances had changed. The applicant had since gained full custody and daily care of the child, meaning the child was no longer considered a 'near relative' under the relevant regulations. Consequently, the Tribunal found that the applicant met the criteria under cl.835.221 of Schedule 2 to the Regulations. The Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant meets the specified criteria.