Siauw (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to migrate to Australia as the remaining relative of their Australian permanent resident mother. The central dispute revolved around whether the applicant had any "near relatives" offshore, as the applicant's biological father resided in Indonesia and had had no contact with the applicant for over seven years. The decision was made by Lilly Mojsin, a Member of the Tribunal.

The legal issues before the Tribunal included the interpretation of the term "near relative" as defined in the Migration Regulations 1994, and whether the applicant's biological father, with whom there had been no contact for an extended period, constituted a "near relative" for the purposes of the visa application. The Tribunal was also required to consider the common law presumption of death and how it applied in the context of the applicant's lack of contact with their father, and whether the benefit of the doubt should be afforded to the applicant.

The Tribunal reasoned that while the applicant's biological father was a "near relative" under the Regulations, the lack of contact for over seven years, coupled with the absence of any information that would allow him to be traced, meant that the applicant should be given the benefit of the doubt. The Tribunal noted that the quality of the relationship with a near relative offshore could not be considered. Applying these principles, the Tribunal determined that the applicant met the criteria under cl.835.212 and cl.835.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Subclass 835 visa for reconsideration by the Minister, with a direction that the applicant satisfied the specified criteria.