Kweh (Migration)

This matter concerned an appeal by an applicant for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa, before the Administrative Appeals Tribunal. The applicant sought to establish that she was an aged dependent relative of her sponsor, an Australian permanent resident.

The Tribunal was required to determine whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This involved assessing whether the applicant was a "relative" of an Australian citizen, permanent resident, or eligible New Zealand citizen, whether she had a spouse or de facto partner, whether she was of an age to be granted an aged pension under the Social Security Act 1991, and crucially, whether she had been dependent on the Australian relative for a reasonable period and remained so dependent.

In its reasoning, the Tribunal found that the applicant, a widow aged 78, qualified as a "relative" of her sponsor, who was an Australian permanent resident. The Tribunal also confirmed that the applicant met the age requirement, having been 73 at the time of application, and that she did not have a spouse or de facto partner. The central issue revolved around the dependency requirement. The Tribunal referred to regulation 1.05A(1), which defines dependency as being wholly or substantially reliant on the relative for financial support for basic needs, and that this reliance must be greater than reliance on any other source. The Tribunal noted the apparent tension between the "reasonable period" requirement in regulation 1.03(b) and the "substantial period" in regulation 1.05A, a tension that courts have harmonised to mean no more substantial than a reasonable period. The Tribunal also clarified that the definition of dependency does not imply necessity or lack of choice.

Ultimately, the Tribunal concluded that the applicant met certain criteria for the Subclass 838 visa, specifically clause 838.212. However, it remitted the application to the Department for reconsideration by a delegate to consider the remaining criteria for the visa.