SHARMA (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal of an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). The applicant sought this visa on the basis that they were a "remaining relative" of an Australian citizen. The core of the dispute revolved around whether the applicant met the definition of a "remaining relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant and their spouse had any "near relatives" who were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens. Specifically, the Tribunal had to consider the definition of "near relative" as set out in regulation 1.15(2), which includes parents, siblings, and children (subject to age and dependency criteria) of the applicant or their spouse.

The Tribunal's reasoning focused on the strict criteria for a "remaining relative" visa. It applied the established legal principles regarding "usual residence," which require both physical presence and intention, citing cases such as *Scargill v MIMIA*. The Tribunal found that the applicant's spouse had a sibling who was a "near relative" and was not usually resident in Australia, nor an Australian citizen, permanent resident, or eligible New Zealand citizen. This finding meant that the applicant did not satisfy the requirements of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the applicants the Subclass 835 visa, as the applicant did not meet the prescribed criteria for being a "remaining relative" at the time of application and decision.