Tjien (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative visa). The applicant sought to rely on a cousin, who was an Australian citizen, as their Australian relative. The Tribunal was required to determine whether the applicant met the criteria for the visa.

The primary legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" under the Migration Regulations 1994. Specifically, the Tribunal had to consider the definitions of "Australian relative" and "remaining relative" as set out in the Regulations, and whether the applicant's relationship with their Australian cousin satisfied these requirements, including the condition regarding the absence of "near relatives" offshore.

The Tribunal reasoned that for the applicant to be granted a Subclass 835 visa, they must be a "remaining relative" of an "Australian relative" at the time of application and decision. The Regulations define "Australian relative" as a relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, the definition of "remaining relative" requires the Australian relative to be a parent, brother, sister, step-brother, or step-sister of the applicant. As the Australian relative in this case was the applicant's cousin, this primary requirement under regulation 1.15(1)(a) was not met. Furthermore, the Tribunal noted that the applicant had near relatives offshore, which also failed to satisfy the conditions of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Other Family (Residence) (Class BU) visa, finding that the applicant did not meet the relevant criteria under clauses 835.212 and 835.213 of Schedule 2 to the Regulations.