Sun (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The applicant, Mr Sun, sought to migrate to Australia as the remaining relative of his sister, Mrs Sun, who is an Australian citizen. The dispute centred on whether Mr Sun met the criteria for a remaining relative at the time of the decision, particularly concerning the usual residence of his near relatives. The decision was made by Justine Clarke.

The primary legal issue before the Tribunal was to determine whether the visa applicant, Mr Sun, satisfied the requirements of cl.115.221 of the Migration Regulations 1994, which mandates that an applicant must continue to be a ‘remaining relative’ at the time of the decision. This involved assessing whether Mr Sun, together with his spouse or de facto partner (if any), had no ‘near relatives’ other than those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens, as defined in r.1.15 of the Regulations.

The Tribunal considered evidence including household registers and movement records. It accepted that Mr Sun was unmarried, not in a de facto relationship, and had no children. The Tribunal found that Mr Sun’s only near relatives were his sister, Mrs Sun, and his parents, Mr SUN Bohui and Ms YU Jiongjing. The Tribunal was satisfied that Mrs Sun was an Australian citizen usually resident in Australia. Despite household register evidence suggesting Mr Sun’s parents usually resided in Shanghai, the Tribunal found, based on their permanent visas (Subclass 155) and movement records, that they were permanent residents of Australia and usually resident in Australia. The Tribunal applied the principles from *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo*, which establish that the notion of ‘usually resides’ involves dual factors of physical residency and intention, referencing the test of where a person ‘eats and sleeps and has his settled or usual abode’.

The Tribunal concluded that the matter should be remitted for reconsideration. The direction given was that the visa applicant meets the criteria for a Subclass 115 (Remaining Relative) visa, specifically cl.115.221 of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the visa.