Simpson (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant claimed to be the remaining relative of an Australian citizen, who was their sister. The delegate's decision had raised concerns regarding the applicant's failure to disclose the identity of their father or establish his death, and the potential existence of half-siblings who might be considered "near relatives." The case was brought before the Tribunal for review.

The primary legal issue before the Tribunal was whether the applicant qualified as a "remaining relative" of an "Australian relative" for the purposes of the Subclass 835 visa. This required determining if the applicant had no near relatives other than those usually resident in Australia. The Tribunal had to consider the definitions of "Australian relative" and "remaining relative" as set out in the Migration Regulations 1994, including the criteria relating to the applicant's relationship with their Australian sister and the absence of other near relatives not residing in Australia.

The Tribunal reasoned that the applicant and the sponsor were indeed siblings, with the sponsor being an Australian citizen and thus an "Australian relative." The Tribunal also considered the established legal principles for determining "usual residence" in Australia, referencing cases such as *Scargill v MIMIA* and *MIMIA v Hidalgo*, which emphasise physical residency and intention. However, the Tribunal found that the delegate's concerns regarding the applicant's father and potential half-siblings had not been adequately addressed. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for the Subclass 835 visa 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 Regulations.