Rathnayaka Mudiyanselage (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant, Mr Rathnayaka Mudiyanselage, sought this visa as an aged dependent relative of an Australian relative, relying on his son for financial support and living with him in Australia. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for an Aged Dependent Relative visa, particularly concerning his dependency on his son and his incapacity for work due to the total or partial loss of bodily functions. The Tribunal was required to assess the evidence, including bank records, to determine if the applicant was indeed dependent on his son and if his physical condition rendered him unable to engage in gainful employment.

The Tribunal found that the applicant met certain criteria for the Subclass 838 visa, specifically those outlined in clauses 838.212 and 838.221 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant satisfied these particular criteria.