Rivera (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 permanent resident, who was their niece. The core of the dispute revolved around the applicant's ability to prove their familial relationship and their status as an aged dependent relative, particularly in light of difficulties obtaining official birth documentation from the Philippines. The decision was made by Margie Bourke, a Senior Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant was a "relative" within the meaning of the Migration Regulations, and whether the applicant met the definition of an "aged dependent relative" of an Australian relative. This definition requires the applicant to be a relative, not have a spouse or de facto partner, have been dependent on the Australian relative for a reasonable period and remain so dependent, and be old enough to be granted an age pension. The Tribunal was specifically required to consider the applicant's ability to prove their relationship to the sponsor, given the absence of a registered birth certificate and the country information regarding birth registration practices in the Philippines for individuals born before 1945.

The Tribunal reasoned that the applicant, born in 1937, was unable to obtain a registered birth certificate due to the limitations of the Philippine Statistics Authority's records, which only commenced from 1945. The Tribunal accepted that the applicant's inability to provide an affidavit from a living witness to her birth was a consequence of her age and the historical record-keeping practices. Consequently, the Tribunal was satisfied that the applicant had provided sufficient evidence, including statutory declarations and country information, to establish that she was a relative of the Australian permanent resident. The Tribunal also found that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Given these findings, the Tribunal remitted the application for the Subclass 838 visa back to the Department for reconsideration, with the direction that the applicant met the criteria relating to being a relative and the dependency requirements.