1509996 (Migration)

This matter concerned an application for a Subclass 838 (Aged Dependent Relative) visa by Ms Ortiz, who claimed to be the aunt of her sponsor, Mr Nelson Ortiz. Ms Ortiz arrived in Australia in 1990 and has lived with her nephew since that time. The central dispute was whether Ms Ortiz qualified as an "aged dependent relative" of an Australian relative, as defined by the Migration Regulations. The decision was made by Helena Claringbold, a Member of the Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether Ms Ortiz was an "aged dependent relative" of Mr Nelson Ortiz, an Australian citizen. This involved assessing whether she met the criteria for being a "relative" and, crucially, whether she was "dependent" on Mr Ortiz. Secondly, the Tribunal had to consider whether Mr Ortiz was an "Australian relative" of Ms Ortiz, as defined by the Regulations.

The Tribunal's reasoning focused on the definition of "dependent" in Regulation 1.05A. This regulation requires that the applicant be wholly or substantially reliant on the sponsor for a substantial period, with that reliance continuing at the time of the visa application. The financial support must be for basic needs such as food, shelter, and clothing, and this reliance must be greater than reliance on any other person or source, unless the applicant is incapacitated for work. The Tribunal found that the applicant met the criteria for being an "aged dependent relative" under clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with the direction that the applicant met the specified criteria for a Subclass 838 visa. The Minister was to consider the remaining criteria for the visa.