Unser (Migration)

This matter concerned an application for a Subclass 835 (Remaining Relative) visa. The primary applicant sought to migrate to Australia on the basis that their only near relative in Australia was their sister, Colleen Michelle Yates, who is an Australian citizen. The applicant's adult child, who was intended to be a secondary applicant, had returned to their home country to complete studies and had commenced full-time work two months prior to the visa application. The Tribunal was required to determine whether the applicant met the criteria for a remaining relative visa.

The legal issues before the Tribunal were whether the applicant was a "remaining relative" of an "Australian relative" at the time of application and decision, as required by the Migration Regulations 1994. Specifically, the Tribunal had to consider if the Australian relative was indeed the applicant's sister, if that sister was usually resident in Australia, and if the applicant had no near relatives other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal also considered the definition of "near relative" in the context of the applicant's adult child.

The Tribunal found that Colleen Michelle Yates was the applicant's sister and an Australian citizen, satisfying the requirement for an Australian relative. It was also satisfied, based on evidence of physical residency and intention, that Ms Yates was usually resident in Australia. The Tribunal then considered the applicant's adult child, who had returned to their home country and commenced full-time work. While this child was a "near relative" under the regulations, the Tribunal noted that the applicant could still request direct consideration from the Minister, even though it decided not to refer the matter for ministerial intervention itself. The Tribunal affirmed the decision under review.