Tavares (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 115 (Remaining Relative), made by a visa applicant who claimed to be the son of an Australian relative. The Tribunal was required to determine whether the visa applicant met the criteria for being a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the Australian relative was a parent of the visa applicant, whether that Australian relative was "usually resident in Australia," and whether the visa applicant and their spouse or de facto partner had any "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal considered the definitions of "Australian relative" and "remaining relative" under the Regulations, as well as the established legal principles for determining "usual residence," which involve both physical residency and intention.

The Tribunal found that the visa applicant was the son of the Australian relative, thus satisfying the parental requirement. It also noted that the Australian relative was an Australian citizen at the time of the decision. The Tribunal applied the principles from cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* to assess the "usually resident in Australia" criterion, which requires consideration of physical presence and settled intention. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister to assess the remaining criteria for the Subclass 115 visa.