Sultana (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The applicant sought to migrate to Australia as the remaining relative of their Australian citizen mother. The dispute arose because the applicant's two children, aged 10, resided in their home country with their ex-husband following the applicant's divorce in 2014. The decision under review affirmed the refusal of the visa. The case was heard by Hugh Sanderson, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the visa applicant qualified as a "remaining relative" under the Migration Regulations 1994. This required determining if the applicant, and their spouse or de facto partner, had no "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The definition of "near relative" was critical, as it included children who had turned 18 and were not dependent, or children under 18 who were not wholly or substantially in the daily care and control of the applicant or their partner.

The Tribunal reasoned that the visa applicant did not meet the criteria for a Subclass 115 visa because they had near relatives who were not usually resident in Australia. Specifically, the applicant's two children, who were not wholly or substantially in the applicant's daily care and control, resided overseas with their father. Regulation 1.15(1)(c) of the Migration Regulations 1994 mandates that an applicant must have no near relatives except those usually resident in Australia and holding Australian citizenship or permanent residency. As the children were considered near relatives and did not meet these criteria, the applicant failed to satisfy this essential requirement.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa. No material was presented that would permit a finding that the visa applicant met the prescribed criteria for the visa sought.