Seymour (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), made by Clinton James Seymour. The applicant sought to migrate to Australia to live with his Australian citizen mother, Jacqueline Rimmington. The core of the dispute revolved around whether the applicant had any "near relatives" who were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens, as required by regulation 1.15(1)(c) of the Migration Regulations 1994. The applicant’s biological father, James Lionel Seymour, resided in the United Kingdom and was not an Australian citizen.

The Tribunal was required to determine if the applicant met the criteria for a Subclass 835 visa, specifically whether he had any near relatives, such as his father, who were not usually resident in Australia and did not meet the specified citizenship or residency requirements. The applicant asserted that he had no contact with his biological father for over seven years, that his father had neglected him, and that he would be homeless and without family in the United Kingdom if forced to return. The Tribunal also considered the applicant's sister, Tammy Leigh Hitching, who was initially stated to reside in England but later confirmed to be residing in Australia.

The Tribunal found that the applicant's sister, Tammy Leigh Hitching, was now usually resident in Australia. Crucially, the Tribunal accepted the applicant's evidence regarding his lack of contact with his biological father for over seven years, noting that there was nothing in the documentation to assist in tracing him. In light of this, the Tribunal applied the principle of giving the applicant the benefit of the doubt regarding his father's status and whereabouts, effectively concluding that the applicant did not have a near relative other than those usually resident in Australia and who met the citizenship or residency criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl.835.212 and cl.835.221 of Schedule 2 to the Migration Regulations 1994. This indicated that the applicant had satisfied the "remaining relative" requirements, allowing for further assessment of the remaining visa criteria.