Schmidt Aravena (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant, Ms Jacqueline Zoila del Pilar Schmidt Aravena, an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant, a national of Chile, sought to migrate to Australia to join her sister, Ms Marcela Ines del Carmen Schmidt Aravena, who was an Australian citizen and the sponsor. The applicant had arrived in Australia on a visitor visa and subsequently applied for the Subclass 835 visa while in Australia, holding a Bridging A visa at the time of the review.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 835 visa, specifically whether she was a "remaining relative" of an "Australian relative" as required by clause 835.212 of Schedule 2 to the Migration Regulations 1994. This involved determining if the applicant had any "near relatives" other than those who were usually resident in Australia and held Australian citizenship, permanent residency, or were eligible New Zealand citizens, as stipulated by regulation 1.15(1)(c).

The Tribunal reasoned that while the applicant's sponsor was an Australian relative and usually resident in Australia, the applicant had a brother, a half-brother, and two half-sisters residing in Chile. These individuals were considered "near relatives" under regulation 1.15(2) and were not usually resident in Australia. Consequently, the Tribunal found that regulation 1.15(1)(c) was not met, as the applicant had near relatives who were not usually resident in Australia. The Tribunal accepted the sponsor's evidence that she was the applicant's primary carer and provided for her daily needs, but this did not overcome the regulatory requirement concerning near relatives.

The Tribunal affirmed the delegate's decision to refuse the visa application.