Kaukimoce (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 this visa on the basis that they were the aged dependent relative of Mr Kulinio Bola Kaukimoce, an Australian permanent resident and the applicant's son. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the definition of 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 relative, did not have a spouse or de facto partner, had been dependent on the Australian relative for a reasonable period and remained so dependent, and was old enough to be granted an aged pension under the Social Security Act 1991.

The Tribunal found that the applicant was indeed the mother of the sponsor, thus satisfying the ‘relative’ requirement. It also accepted evidence that the applicant was widowed and had not remarried, fulfilling the condition of not having a spouse or de facto partner. Furthermore, the applicant’s age at the time of application and decision meant she was old enough to be granted an aged pension. However, the Tribunal did not make a finding on whether the applicant was dependent on the Australian relative, nor did it explicitly state that the applicant was incapacitated. Despite meeting some definitional criteria, the Tribunal considered the applicant's circumstances to be unique or exceptional and decided to refer the case to the Minister for consideration under section 351 of the Migration Act 1958, which allows for discretionary intervention in the public interest.

Ultimately, the Tribunal affirmed the decision not to grant the visa, but the referral to the Minister indicated a recognition of potentially exceptional circumstances that might warrant a more favourable outcome through ministerial discretion.