Nikitenko (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 114 (Aged Dependent Relative) visa. The applicant, Ms Nikitenko, sought to establish that she was an aged dependent relative of her son, Mr Nikitenko, an Australian citizen. The dispute before the Tribunal centred on whether Ms Nikitenko met the definition of an "aged dependent relative" as defined in the Migration Regulations.

The Tribunal was required to determine whether Ms Nikitenko was a "relative" of an Australian citizen, whether she had a spouse or de facto partner, and crucially, whether she was dependent on her Australian relative. The definition of "dependent" required the Tribunal to assess if Ms Nikitenko was wholly or substantially reliant on her son for financial support to meet her basic needs, and if this reliance was greater than her reliance on any other person or source of support. The Tribunal also needed to consider if Ms Nikitenko was old enough to be eligible for an Australian aged pension.

The Tribunal found that Ms Nikitenko was a "relative" of an Australian citizen, her son Mr Nikitenko, and that she did not have a spouse or de facto partner. In assessing the dependency criterion, the Tribunal noted that the applicant's Russian pension was insufficient to cover her living costs. The Tribunal considered the meaning of "substantially reliant," which involves a concept of predominance, requiring the applicant to be predominantly or "primarily, essentially or in the main" dependent on the sponsor. The Tribunal also acknowledged that it was open to explore other sources of income on which the applicant was dependent when assessing this criterion.

Ultimately, the Tribunal concluded that the visa applicant met certain criteria for a Subclass 114 visa, specifically cl.114.211 and cl.114.221 of Schedule 2 to the Regulations. However, the Tribunal remitted the application for reconsideration by the Minister to consider the remaining criteria for the visa.