Li (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 this visa on the basis that they were the aged dependent relative of Ms Ming Li, who was an Australian permanent resident and the applicant's daughter. The decision under review was made by a delegate, and the case was brought before the Tribunal for reconsideration.

The primary legal issues before the Tribunal were whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994 (Cth). This required the Tribunal to determine if the applicant was a "relative" of Ms Li, if they had a spouse or de facto partner at the time of application, and crucially, if they had been dependent on Ms Li for a reasonable period and remained so dependent. The definition of "dependent" under regulation 1.05A(1) was also central, requiring assessment of the applicant's reliance on Ms Li for financial support for basic needs, and whether this reliance was greater than any other source of support, or due to loss of bodily or mental functions.

The Tribunal found that the applicant was a "relative" of Ms Li and, based on a notarised death certificate, was widowed at the time of application, thus satisfying that limb of the definition. However, the Tribunal did not make a definitive finding on the dependency criterion. While the applicant had resided with Ms Li for four years and presented evidence of physical and mental health issues, the Tribunal concluded that further consideration of the evidence and submissions regarding the applicant's financial reliance on Ms Li was necessary. Consequently, the Tribunal determined that the matter should be remitted for reconsideration by the Minister.