DUONG (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Ms. Duong for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The core of the dispute concerned whether Ms. Duong was an aged dependent relative of an Australian sponsor and whether she had been wholly or substantially reliant on that sponsor for a reasonable period before lodging her application.

The Tribunal was required to determine if Ms. Duong met the prescribed criteria for the Subclass 838 visa. This involved assessing the nature and extent of her dependency on the sponsor, particularly in light of her past financial independence, including self-funding previous visitor visa applications and selling a charitable medical clinic. The Tribunal also had to consider whether her capacity to work was affected by her medical condition.

The Tribunal found that Ms. Duong did not meet the criteria for the Subclass 838 visa. It reasoned that her past financial independence and the availability of other sources of financial support indicated she was not wholly or substantially reliant on the sponsor for the requisite period. Furthermore, the Tribunal noted that her medical condition did not impair her capacity to work, which was relevant to the dependency assessment. As no material supported her meeting the criteria for other visa subclasses, the Tribunal affirmed the decision not to grant the visa.