Rabenitas (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), before the Migration Review Tribunal. The applicant, Mr Jonathon Alviar Rabenitas, sought to establish that he was a remaining relative of his Australian citizen father, Mr Jesus Murallos.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 835 visa, specifically whether he was a "remaining relative" of an "Australian relative" at the time of application and decision. This involved assessing whether the Australian relative was a parent, usually resident in Australia, and crucially, whether the applicant and his spouse 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 found that the applicant's father, Mr Jesus Murallos, was an Australian citizen and the applicant's parent, satisfying the initial limb of the definition. The Tribunal was also satisfied, based on oral evidence and established legal principles regarding "usual residence," that Mr Murallos resided primarily in Australia. However, the applicant's recent marriage meant that his wife's relatives were considered in the assessment of "near relatives." As the applicant's wife had relatives residing in her home country who did not meet the criteria of being usually resident in Australia and being Australian citizens, permanent residents, or eligible New Zealand citizens, the applicant failed to satisfy the requirement of having no near relatives other than those in Australia.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, as he did not meet the prescribed criteria.