Ranathunga Arachchige (Migration)

This matter concerned an application for review of a decision not to grant Other Family (Migrant) (Class BO) visas, specifically Subclass 115 (Remaining Relative) visas, to a primary applicant, his wife, and two children. The primary applicant, a citizen of Sri Lanka, claimed his sister, who was an Australian permanent resident, was his Australian relative. The applicants asserted they had no contact with their parents and siblings in Sri Lanka due to familial disapproval of their marriage and other personal circumstances. The review was heard by A B Baker, Senior Member, of the Tribunal.

The central legal issue before the Tribunal was whether the visa applicants met the definition of a "remaining relative" under the Migration Regulations 1994. This required determining if the primary applicant was a "remaining relative" of his Australian permanent resident sister, and crucially, whether the primary applicant and his wife had any "near relatives" other than those who were usually resident in Australia and held Australian citizenship or permanent residency. The Tribunal had to interpret the definitions of "Australian relative," "relative," and "near relative" as provided in the Regulations.

The Tribunal reasoned that to qualify as a remaining relative, the applicant must have no near relatives except those who are usually resident in Australia and are Australian citizens or permanent residents. In this case, the primary applicant declared that both his parents and a brother resided in Sri Lanka, and his wife also had a parent and sibling in Sri Lanka. Despite the applicants' claims of estrangement due to disapproval of their marriage and other personal difficulties, these individuals were defined as "near relatives" under the Regulations. As these near relatives were not usually resident in Australia and did not hold Australian citizenship or permanent residency, the applicants failed to satisfy the criteria under regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the delegate's decision not to grant the visas. As the primary applicant did not meet the criteria, the secondary applicants, his wife and children, also did not meet the criteria for the grant of their visas.