Gadiane (Migration)

The Administrative Appeals Tribunal considered whether the applicant, born in 1942 in the Philippines, qualified as an aged dependent relative of her sister, the sponsor, who was an Australian citizen. The applicant sought an Other Family (Residence) (Class BU) visa, Subclass 838 (Aged Dependent Relative). The core dispute revolved around whether the applicant had been, and continued to be, dependent on the sponsor for a substantial period prior to the application, as required by the Migration Regulations.

The Tribunal was required to determine if the applicant met the definition of an "aged dependent relative" under regulation 1.03 of the Migration Regulations. This involved assessing whether the applicant was a relative of the sponsor, lacked a spouse or de facto partner, was of an age to receive an aged pension, and crucially, had been dependent on the sponsor for a reasonable period and remained so dependent at the time of the application and decision. The definition of "dependent" in regulation 1.05A stipulated that the applicant must be wholly or substantially reliant on the sponsor for financial support to meet basic needs, and this reliance must be greater than reliance on any other person or source.

The Tribunal reasoned that while the sponsor provided financial and other support to the applicant and her mother in the Philippines, and later to the applicant in Australia, there was insufficient independent evidence to substantiate the claims of substantial dependence. The applicant's own salary and pension from her home country were considered, and the Tribunal found that her reliance on the sponsor was not demonstrably greater than her reliance on other sources of support. The Tribunal noted that the concept of dependence under regulation 1.05A did not imply necessity or lack of choice, but rather a factual reliance.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Subclass 838 visa, concluding that the applicant did not meet the prescribed criteria for this visa subclass. No material was presented to suggest the applicant met the criteria for any other visa subclasses.