Thompson (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to establish that they were a "remaining relative" of an "Australian relative," who was identified as Mrs King, an Australian citizen. The decision under review affirmed the refusal of the visa application.

The Tribunal was required to determine whether the applicant met the criteria for being a "remaining relative" under the Migration Regulations 1994. This involved assessing whether Mrs King was an "Australian relative" and, crucially, whether the applicant qualified as a "remaining relative" in relation to her. The definition of "remaining relative" necessitates that the Australian relative is a parent or sibling, usually resident in Australia, and that the applicant has no "near relatives" other than those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal accepted evidence that the applicant and Mrs King were biological siblings, thus satisfying the requirement that the Australian relative be a sister. However, the core of the decision rested on the interpretation of "near relatives" and the applicant's familial circumstances. The applicant's half-brother resided in the United Kingdom and was not an Australian citizen, permanent resident, or eligible New Zealand citizen. The Tribunal found that this half-brother constituted a "near relative" who was not usually resident in Australia and did not meet the specified criteria. Consequently, the applicant failed to satisfy the condition that they have no near relatives other than those who are usually resident in Australia and hold Australian citizenship or residency status.

Accordingly, the Tribunal affirmed the decision to refuse the visa application, as the applicant did not meet the definition of a "remaining relative" under the relevant regulations.