Tar (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), heard by David Crawshay of the Tribunal. The applicant sought the visa on the basis that they were the remaining relative of an Australian relative, specifically their step-mother, Ms Sawn Yunt Bee Shwe Pa Lei, who was an Australian citizen. The core of the dispute revolved around whether the applicant met the criteria for being a "remaining relative" under the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant satisfied the definition of a "remaining relative" as defined in regulation 1.15 of the Migration Regulations 1994. This involved assessing whether the applicant had any "near relatives" who were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens. The definition of "near relative" under regulation 1.15(2) includes parents, siblings, step-parents, step-siblings, and certain children.

The Tribunal affirmed the decision not to grant the visa. The applicant had provided information about a brother, Mr Saw Kyaw Shu Larr Htunt, who was listed as a citizen of Myanmar and residing in Myanmar. The Tribunal noted that the applicant had not responded to an invitation to provide further information regarding this sibling. As Mr Htunt was a near relative not usually resident in Australia and not an Australian citizen or permanent resident, the applicant failed to satisfy the requirement under regulation 1.15(1)(c) that they and their partner have no near relatives other than those usually resident in Australia and holding Australian citizenship or permanent residency. The Tribunal also briefly considered and dismissed an alternative claim for a Subclass 838 (Aged Dependent Relative) visa, finding the applicant did not meet the age requirement.