Le (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 an Australian citizen. The Federal Circuit Court had previously remitted the matter for reconsideration.

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, and specifically, whether she was wholly or substantially reliant on her Australian relative for financial support to meet her basic needs at the time of application and at the time of decision. The Tribunal was also required to consider whether the applicant met the criteria for the visa as set out in Part 838 of Schedule 2 to the Regulations.

The Tribunal noted that the applicant met the criteria of not having a spouse and being of an age to be granted an aged pension under the Social Security Act 1991. The central question revolved around the dependency requirement. The Tribunal considered the definition of "dependent" in regulation 1.05A(1), which requires reliance on the relative for financial support to meet basic needs, and that this reliance must be greater than reliance on any other person or source. The Tribunal found that the applicant's reliance on her Australian relative was established through periodic but consistent money transfers, which supported her basic needs.

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.