Mala (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 review of a decision that affirmed the refusal of their visa application. The applicant claimed to be the aged dependent relative of Seleno Gupta, an Australian citizen and the applicant's niece.

The Tribunal was required to determine whether the applicant met the criteria for an Aged Dependent Relative visa. This involved assessing whether the applicant was a 'relative' as defined, did not have a spouse or de facto partner, had been dependent on the Australian relative for a reasonable period and remained so dependent, and was of an age to be granted an aged pension. The central issue revolved around the interpretation and application of the 'dependent' requirement under regulation 1.05A of the Migration Regulations 1994.

The Tribunal found that the applicant met the criteria of being a 'relative' and not having a spouse or de facto partner. However, the delegate had not been satisfied that the applicant had been dependent on the sponsor for a reasonable period. While the sponsor had covered the applicant's expenses for three months prior to the application, this was not considered a sufficient period of dependency. Furthermore, the delegate found no evidence of financial support between 2014 and 2016. The Tribunal noted that 'dependent' under regulation 1.05A means being wholly or substantially reliant on the relative for financial support for basic needs, and this reliance must be greater than reliance on any other person or source.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations, indicating that the remaining criteria, particularly those relating to dependency, required further assessment.