Ngo (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 114 (Aged Dependent Relative), made by a visa applicant who claimed to be the aged dependent relative of Ms Ha Thu Thi Ngo, an Australian citizen and the applicant's daughter. The dispute before the Tribunal was whether the visa applicant met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the visa applicant qualified as an "aged dependent relative" of an Australian relative. This required determining if 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 met the age requirement for an aged pension. Specifically, the Tribunal had to assess the applicant's financial dependence on Ms Ngo, considering whether the applicant was wholly or substantially reliant on Ms Ngo for financial support for basic needs and whether this reliance was greater than reliance on any other person or source.

The Tribunal found that the visa applicant met the criteria of being a "relative" and that subparagraph (a) of the definition of "aged dependent relative" was met as the applicant's spouse had passed away. The Tribunal also considered the definition of "dependent" under regulation 1.05A, which requires the applicant to be wholly or substantially reliant on the relative for financial support for basic needs, and for this reliance to be greater than reliance on any other person or source. While the applicant provided evidence of money transfers from Ms Ngo, the Tribunal noted inconsistencies in the amounts stated across different interviews, suggesting a need for further consideration of the extent and nature of this reliance.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria under cl 114.211 and cl 114.221 of Schedule 2 to the Regulations.