Sio (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835, by an applicant seeking to be recognised as a remaining relative. The applicant was sponsored by their child, an Australian permanent resident. The Administrative Appeals Tribunal was required to determine whether the applicant met the sponsorship requirements for the visa.

The primary legal issue before the Tribunal was whether the applicant's sponsorship by their child satisfied the requirements of the Migration Regulations 1994. Specifically, the Tribunal had to consider the definition of a "remaining relative" under regulation 1.15 and the associated sponsorship criteria, particularly whether a child could be a sponsor for a parent. The Tribunal also considered the applicant's submission that the sponsor should be changed and whether such a change was permissible under the regulations.

The Tribunal reasoned that regulation 1.15(1)(a) of the Migration Regulations 1994 defines the sponsoring person as a parent, brother, sister, step-brother, or step-sister of the applicant. The Tribunal noted that this definition explicitly excludes a child of the applicant. As the applicant was sponsored by their child, this criterion was not met. The Tribunal further held that there is no provision within the legislation to allow for a change of sponsor, and even if there were, the applicant must satisfy the criteria at the time of application, which they had not done. Consequently, the applicant failed to meet the requirements of clause 835.212 and 835.213 of the Migration Regulations.

The Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa, finding that the applicant did not meet the prescribed criteria. The Tribunal also noted that no material was presented to suggest the applicant met the criteria for any other visa subclasses, such as the Aged Dependent Relative visa.