Khawaja (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 114 (Aged Dependent Relative) visa. The applicant sought to migrate to Australia as the aged dependent relative of her eldest child, who was an Australian citizen and the sponsor. The dispute before the Tribunal was whether the applicant met the criteria for this visa subclass.

The primary legal issue before the Tribunal was to determine if the applicant qualified as an "aged dependent relative" of an Australian citizen, permanent resident, or eligible New Zealand citizen, as defined by the Migration Regulations 1994. This required assessing whether the applicant was a "relative" of the sponsor, whether she had a spouse or de facto partner, whether she had been and remained dependent on the sponsor for a reasonable period, and whether she was of an age to be granted an aged pension under the Social Security Act 1991.

The Tribunal found that the applicant met the definition of an "aged dependent relative." She was the sponsor's mother, thus a "relative" under the regulations. She was widowed and had no de facto partner. Crucially, the Tribunal was satisfied that she had been dependent on her son for financial support since her retirement in December 2010, evidenced by regular money transfers and her reliance on these funds for basic living expenses. The applicant's age and inability to work due to health conditions also supported her eligibility for an aged pension.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria specified in clauses 114.211 and 114.221 of Schedule 2 to the Migration Regulations 1994.