Hsu Lee (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant sought to establish that she was an aged dependent relative of her daughter, Hsu Tzu-Han, an Australian citizen. The decision was made by Adrienne Millbank, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the definition of an "aged dependent relative" as defined in the Migration Regulations 1994. This required determining if the applicant was a "relative" of an Australian citizen, if she had a spouse or de facto partner, and crucially, if she had been dependent on her Australian relative for a reasonable period and remained so dependent at the time of application and decision. The Tribunal also considered the meaning of "dependent" under regulation 1.05A, including the requirement of being wholly or substantially reliant on the sponsor for basic needs and that this reliance must be greater than reliance on any other source.

The Tribunal found that the applicant met the criteria of being a "relative" of an Australian citizen and that she did not have a spouse or de facto partner, as her husband had died in 2001 and there was no evidence of a subsequent partner. The Tribunal also considered the definition of "dependent" in regulation 1.05A, noting that "substantial period" should be interpreted as a "reasonable period" and that the concept of dependency does not imply necessity or lack of choice. While the case text does not detail the Tribunal's specific findings on the dependency criteria, it indicates that further consideration was required.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations.