Perazza (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 they were an "aged dependent relative" of an Australian citizen, Mr. Giuseppi Caligiuri, who is the applicant's granddaughter's husband. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for this visa subclass.

The Tribunal was tasked with assessing whether the applicant qualified as an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This involved determining if the applicant was a "relative" of an Australian citizen, if they had no spouse or de facto partner, if they had been and remained dependent on the Australian relative for a reasonable period, and if they were of an age to be granted an age pension. The definition of "dependent" under regulation 1.05A(1) was also a key issue, requiring consideration of whether the applicant was wholly or substantially reliant on the Australian relative for financial support to meet basic needs, and whether this reliance was greater than on any other person or source.

The Tribunal found that the applicant was a "relative" for the purposes of the visa application, as Mr. Caligiuri was the applicant's granddaughter's husband. It was also established that the applicant was widowed, thus meeting the criterion of not having a spouse or de facto partner. However, the Tribunal concluded that the evidence presented did not sufficiently demonstrate that the applicant was dependent on Mr. Caligiuri for a reasonable period to meet their basic needs, nor that this reliance was greater than any other support. The Tribunal noted that the applicant had arrived in Australia in December 2016, applied for the visa in January 2017, and the application was refused in August 2018.

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, but further assessment was required regarding the remaining criteria for the Subclass 838 visa.