Victor (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 an aged dependent relative of Ms Manjula Prema Kumari Victor, an Australian citizen and the applicant's daughter. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for this visa subclass.

The primary legal issue before the Tribunal was whether the applicant qualified as an "aged dependent relative" under the Migration Regulations 1994. This involved assessing whether the applicant was a "relative" of an Australian citizen, had no spouse or de facto partner, was of an age to receive an aged pension, and crucially, had been dependent on the Australian relative for a reasonable period and remained so dependent. The definition of "dependent" required 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 of support.

The Tribunal found that the applicant met the criteria of being a "relative" of an Australian citizen and that the applicant had no spouse or de facto partner, having been widowed. The Tribunal also noted that the applicant was of an age to be granted an aged pension. The central question of dependency was considered in light of the applicant's submissions and evidence regarding financial support. The Tribunal concluded that the applicant's reliance on Ms Victor was greater than their reliance on any other person or source of support, particularly given that four other children in the applicant's home country were unable to provide support.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under cl 838.212 (being a relative of an Australian citizen) and cl 838.221 (being dependent on that relative) of Schedule 2 to the Migration Regulations.