RAJANAYAGAM (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 Mr Gerard Rajanayagam, an Australian citizen and the applicant's son. The Federal Circuit Court had previously remitted the matter for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant was a "relative" of an Australian citizen, did not have a spouse or de facto partner, had been and remained dependent on the Australian relative for a substantial period, and was of an age to be granted an aged pension.

The Tribunal found that the applicant was the mother of the Australian citizen sponsor, thus satisfying the "relative" criterion. It also accepted the applicant's evidence that she was widowed and had not remarried, meaning she did not have a spouse or de facto partner. Crucially, the Tribunal considered the definition of "dependent" in regulation 1.05A(1), which requires the applicant to be wholly or substantially reliant on the Australian relative for financial support for basic needs, and for this reliance to be greater than reliance on any other source. The Tribunal concluded that the applicant was reliant on her son for financial support to meet basic needs for food, clothing, and shelter for a substantial period.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations.