Lee (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 her niece, Ms Chan Wei Yin, who was a settled permanent resident of Australia and the sponsor for the visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the applicant was an "aged dependent relative" of an Australian relative, as defined by the Migration Regulations 1994. This involved assessing whether the applicant had a spouse or de facto partner, whether she had been dependent on the Australian relative for a reasonable period and remained so dependent, and whether she was of an age to be granted an aged pension. Crucially, the Tribunal had to determine the meaning of "dependent" in this context, which required assessing whether the applicant was wholly or substantially reliant on her sponsor for financial support for basic needs, and whether this reliance was greater than on any other source.

The Tribunal accepted the claimed familial relationship between the applicant and her niece based on the documentary evidence provided. It also found that the applicant met the criteria of not having a spouse or de facto partner. However, the Tribunal found that the applicant did not meet the criterion of being dependent on her sponsor. Despite the applicant's arguments and evidence presented at a hearing, including statutory declarations, the Tribunal concluded that the applicant's substantial bank accounts indicated she was not wholly or substantially reliant on her niece for financial support for her basic needs, and that her reliance on her sponsor was not greater than her reliance on other sources of support.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 838 visa, finding that she did not meet the prescribed criteria for the visa sought.