Kochhar (Migration)

The applicant sought review of a decision concerning an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The core of the dispute revolved around whether the applicant had been substantially financially dependent on her sponsor, Mr. Daras Bir Singh, for a significant period prior to lodging her application. The applicant claimed to be an aged dependent relative of Mr. Singh, who is an Australian relative.

The legal issues before the court were whether the applicant met the criteria for a Subclass 838 visa, particularly concerning the requirement of being a substantial period of dependency on an Australian relative. This involved assessing the evidence provided to demonstrate that the applicant was fully financially dependent on the sponsor for essential needs such as food, clothing, and shelter, both in Australia and overseas, for a substantial period. The court also considered the relevance of cultural expectations and the applicant's limited financial resources in India, including a plot of land insufficient for her retirement needs.

The court considered statutory declarations from the sponsor and the applicant's daughter, bank statements, and evidence of money transfers. The sponsor stated he had been the primary provider for the applicant's basic needs since her husband's death in 2006, providing weekly cash and lump sums when she travelled. The applicant's daughter confirmed these circumstances and noted her own inability to provide care due to family size and cultural expectations regarding her in-laws. The court found that the applicant met certain criteria for the visa, specifically clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Subclass 838 visa to the Minister for reconsideration, with the direction that the applicant meets the specified criteria.