Ghabrial (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant, a United States national of Egyptian background, sought the visa on the basis that she was the aged dependent relative of her sister, Ms Ester Shehata, an Australian citizen. The applicant had been residing in Australia since 2011, having left her previous home in Boston after her husband's death in 2008, and had not worked outside the home since 2006. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for being an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant was a "relative" of an Australian citizen, if she had no spouse or de facto partner, if she had been and remained dependent on her Australian relative for a reasonable period, and if she was of an age to be granted an aged pension. The Tribunal was also required to consider the specific clauses of Schedule 2 to the Regulations, namely cl 838.212 and cl 838.221, which relate to being an aged dependent relative and the requirement of financial dependence.

The Tribunal found that the applicant was a "relative" of an Australian relative for the purposes of the visa application, as Ms Shehata was her biological sister and an Australian citizen. The Tribunal also noted that the applicant had no children or relatives in the United States. While the applicant had lived with her mother until 2015 and then moved in with her sister rent-free, the Tribunal acknowledged that this did not preclude her from having been financially reliant on her sister prior to 2015. The Tribunal concluded that the applicant met the criteria under cl 838.212 and cl 838.221 of Schedule 2 to the Regulations.

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