O'Doherty (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant, a citizen of the United Kingdom, sought review of a delegate's decision to refuse her visa application. The delegate's refusal was based on the applicant having two near relatives, her half-brothers, who were ordinarily resident in the United Kingdom. The applicant contended that her half-brothers were not "near relatives" for the purposes of the visa criteria, and that her only near relatives were her mother, stepfather, and step-siblings, all of whom were ordinarily resident in Australia and held Australian permanent resident or citizen status. The decision was heard by Senior Member Ann Brandon-Baker of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant qualified as a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant, and her spouse or de facto partner (if any), had no "near relatives" other than those who were ordinarily resident in Australia and were Australian citizens, Australian permanent residents, or eligible New Zealand citizens. Central to this determination was the interpretation of the term "near relative" as defined in regulation 1.15(2), and whether "half-brother" fell within that definition.

The Tribunal reasoned that the definition of "near relative" in regulation 1.15(2)(a) explicitly includes a "brother" and a "step-brother". The applicant argued that "half-brother" was not specifically mentioned and therefore should not be included. However, the Tribunal found that the applicant's half-brothers were indeed her brothers, and that the definition of "near relative" encompassed brothers. Consequently, the applicant had near relatives (her half-brothers) who were not ordinarily resident in Australia and were not Australian citizens or permanent residents. This meant the applicant did not satisfy the criterion that she and her spouse or de facto partner have no near relatives other than those who are ordinarily resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal affirmed the delegate's decision not to grant the applicant the Subclass 835 visa. The Tribunal found that the applicant did not meet the prescribed criteria for the visa sought.