Remaining Relative Visa (Subclass 115 and 835): The Applicant

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Remaining Relative Visa (Subclass 115 and 835): The Applicant

Are you in the position where you no longer have any close relatives that live outside of Australia? Perhaps all of the family you know has moved to Australia. You may apply for the permanent Australian Remaining Relative Visa (subclass and 115 and 835) if they are a relative of an Australian citizen, permanent resident or eligible New Zealand citizen.

Now the waiting time for this visa to be granted is currently so long (50 years) that you would not seriously consider the offshore 115 visa however the onshore 835 does give a BVA and access to medicare and the possibility to obtain permission to work.

The subclass 115 visa deals with applicants who are outside Australia and subclass 835 are for applicants who are in Australia.

  • Remaining relative requirement met
  • Sponsor requirements met
  • Assurance of Support
  • Health and character requirements
  • If the applicant is under 18, the move to Australia must be in the best interests of the child

Remaining relative

The Department of Home Affairs (DOHA) defines ‘remaining relative’ as the applicant and their partner, if applicable, having no “near relatives” other than their sponsor.

They are a relative of their sponsor:

  • Parent
  • Brother
  • Sister
  • Step-parent
  • Step-brother
  • Step-sister

Evidence must be provided to demonstrate the relationship and documentation includes:

  • Birth certificates (showing full names of parents)
  • Marriage certificates
  • Death certificates
  • Adoption certificates or
  • In lieu of some or all of the above, family status certificates or family books (that is, in circumstances where these documents are officially issued and maintained).

Further to this, the DOHA will interview all remaining relative applicants and will also cross check all documents from both the applicant and sponsor. 

If official documentation is not available, there should be a reasonable explanation as to why. Other supporting documentation may then be used in place and include:

  • Medical records
  • Taxation records
  • Health insurance or social security records
  • Wills or testaments
  • Departmental records.

In these cases, however, the applicant should provide at least two different types of alternative evidence in lieu of “official” evidence.

DNA testing is a last resort method of providing a relationship when documentation is scarce or does not appear reliable.

Near relative

Remember that it needs to be proven that the applicant has no other near relatives outside of Australia. In this, the relationship and residence must be tested. 

Near relatives are:

  • Parents, siblings, step-parents and step-siblings of the applicant or of the applicant’s partner
  • Adult non-dependent children (including step-children) of the applicant or of the applicant’s partner
  • Non-adult children (including step-children) of the applicant or of the partner who are not wholly or substantially in the daily care and control of the applicant or of the applicant’s partner 

Read: When Is A Child Considered Dependent?

Note that step children stop being near relatives if the step parent is no longer the partner of their parent.

The applicant cannot have any near relatives that are not Australian citizens, permanent residents or eligible New Zealand citizens.

Usual residence of near relative

The applicant cannot have any near relatives who are not usually resident in Australia. We cover usual residence in our next article. The link below will become live when this is published.

Read: Remaining Relative visa (subclass 115 and 835) – The Sponsor (published later this week)

Existence of near relative

Records or other information held may indicate the existence of a near relative that an applicant claims does not exist or has since died, or whose whereabouts are now unknown. In such cases, it is the responsibility of the applicant to demonstrate their claims.

Claim that near relative is dead

There are cases where a near relative who has not been in contact can be presumed to be dead (and therefore the applicant has no near relatives outside Australia). This can be official – that is, applied by law – or it may not. Evidence that could be provided supporting a near relative is dead include statutory declarations from persons who:

  • Could be expected to be in contact with the near relative if they were alive
  • Had contact with the near relative before that near relative was last seen, and can attest to the state of mind of that now missing last relative

If there is no legal presumption of death, the DOHA will also consider that:

  • The person has been missing for 7 years at least
  • Any other evidence that may point to that person either been alive or dead

Claim that near relative is missing

A missing near relative will still be counted as a near relative outside of Australia and so the applicant would not be eligible for the remaining relative visa. Only when a missing relative is also claimed to be dead will that applicant become eligible for the remaining relative visa.

Estranged relatives

Estranged relatives are still considered relatives as the DOHA is unable to assess the quality of relationships. If you have estranged near relatives outside of Australia, you will not be eligible for the remaining relative visa.

Check back in soon as we will cover important requirements relating to the sponsor in our upcoming article!

Would you like to find out more about if you are eligible for the remaining relative visa, how to apply for it or how to provide the correct documentation? Australian Immigration Law Services has helped many families reunite in Australia. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.

Jee Eun Han