Shariff (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 this visa on the basis that they were the aged dependent relative of Mr Afzal Shariff, an Australian citizen and the applicant's biological son. The decision under review was made by the Migration Review Tribunal.

The primary legal issues before the Tribunal were 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, if they had no spouse or de facto partner, if they had been dependent on the Australian relative for a reasonable period and remained so dependent, and if they were of an age to be granted an aged pension. The Tribunal also had to consider the definition of 'dependent' under regulation 1.05A, 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 person or source.

The Tribunal found that the applicant met the criteria of being a 'relative' of an Australian citizen and that the applicant was a widower with no spouse or de facto partner. In relation to dependency, the Tribunal noted that the applicant had retired from the Fiji Civil Service and received a lump sum pension, which was largely used for the education of their children. The Tribunal considered the case law regarding the interpretation of 'dependent' and 'reasonable period', noting that dependency does not imply necessity or lack of choice. However, the provided text does not detail the Tribunal's specific findings on whether the applicant was wholly or substantially reliant on their son for financial support for basic needs, nor does it detail the findings on the applicant's age pension eligibility.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under cl 838.212 and cl 838.221 of Schedule 2 to the Regulations, indicating that further assessment was required on the remaining criteria for the Subclass 838 visa.