NSAMA (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, subclass 835 (Remaining Relative), brought before the Tribunal by an applicant who claimed to be the remaining relative of an Australian permanent resident. The applicant's Australian relative was identified as her sister, Joyce Musonda Nsama Simwanza. The core of the dispute revolved around whether the applicant met the specific criteria for a Subclass 835 visa, particularly the definition of a "remaining relative" as stipulated in the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant satisfied the requirements of regulation 1.15 of the Migration Regulations 1994, which defines a "remaining relative." Specifically, the Tribunal had to assess if the applicant and her 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. This involved interpreting the meaning of "usually resident" and "near relative" within the context of the regulations.

The Tribunal's reasoning focused on the definition of a "remaining relative" under regulation 1.15. It was established that the Australian relative, the applicant's sister, was usually resident in Australia, satisfying subclauses (1)(a) and (1)(b). However, the critical issue was subclause (1)(c), which requires the applicant to have no "near relatives" outside of Australia who do not meet the specified criteria. The Tribunal found that the applicant had siblings residing in her home country, who were considered "near relatives" under regulation 1.15(2) and did not meet the exception criteria of being usually resident in Australia and holding Australian citizenship or permanent residency.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, as the applicant failed to meet the prescribed criteria for the visa sought.