Van Rooyen (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 Mrs Delia Reincke, an Australian citizen and the applicant's daughter. The applicant did not claim to be a carer and had not made a valid application for a Carer visa. The decision was made by Senior Member Justin Owen of the Tribunal.

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 relative, if they had no spouse or de facto partner, if they had been dependent on the Australian relative for a substantial period and remained so dependent, and if they were old enough to be granted an aged pension under the Social Security Act 1991.

The Tribunal found that the applicant was the mother of the sponsor, an Australian citizen, and therefore met the definition of a "relative" for the purposes of the visa criteria. The Tribunal also accepted evidence that the applicant's husband had died and that she had remained single since that time, thus satisfying the criterion of not having a spouse or de facto partner. However, the Tribunal did not make findings on the remaining criteria, specifically whether the applicant had been wholly or substantially reliant on the Australian relative for a substantial period and continued to be so reliant, nor whether the applicant was old enough to be granted an aged pension.

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