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Tribunal: Senior Member Kira Raif

A delegate of the Minister for Home Affairs decided to refuse to grant the applicant an Other Family (Residence) (Class BU) visa. The Tribunal affirmed this decision on 30 April 2018.

The applicant is a Vietnamese national born in January 1983. She previously applied for a Remaining Relative visa offshore that was refused by the Department of Home Affairs, but on review that matter was remitted by the Tribunal (differently constituted).

The applicant applied for the present visa in November 2015 and the delegate refused to grant the visa on the basis that cl. 835.212 of the Migration Regulations was not met because the delegate was not satisfied that the applicant was the remaining relative of an Australian relative.

In order to be granted a Remaining Relative visa, the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at the time of application, and continue to be a ‘remaining relative’ at the time of decision.

An applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

The applicant must also have no ‘near relatives’ with the exception of certain relatives in Australia.

Is the applicant a remaining relative of an Australian relative?

The applicant gave the Tribunal a copy of the primary decision record, which indicated that the applicant had stated on the application form that her mother and sister are Australian permanent residents and residing in Australia. The applicant did not list her father’s details on the form but provided evidence of her parents’ divorce. She claimed that her father’s whereabouts were unknown and she could not provide further information relating to him.

The applicant and her mother informed the Tribunal that they attempted to locate the applicant’s father with the assistance of family friends and relatives some years ago but were unsuccessful. The Tribunal was unsatisfied that adequate steps were taken to locate the father.

The applicant also referred to the earlier findings of the Tribunal in the previous decision, which applied the presumption of death. The Tribunal considered the applicant’s evidence but did not agree with the earlier finding that the presumption of death applied in this case. The applicant’s evidence was that her parents divorced many years ago. The Tribunal found that it was not uncommon for the parties to have little to no contact with each other following divorce, and it was not uncommon for parents to have little or no contact with children. Therefore, the mere fact that the father had not made contact with the applicant and her mother, or with his other family, did not necessarily indicate his death. The previous finding was not binding on the Tribunal and for the reasons above, the Tribunal was not satisfied that the presumption of death applied.

The Tribunal found that the applicant’s father was a near relative, despite any lack of contact and relationship between them.

The Tribunal also considered whether the applicant’s father is an Australian citizen or permanent resident or an eligible New Zealand citizen, and was not satisfied that he resided in Australia.

Read the full written decision on Austlii.