Yu (Migration)

This matter concerned an application for a Subclass 838 (Aged Dependent Relative) visa, where the applicant claimed to be the aged dependent relative of Gangqi Clement Yu, an Australian citizen. The 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 required the Tribunal to assess if the applicant was a "relative" of the Australian citizen, whether they had a spouse or de facto partner, if they were of an age to receive an Australian age pension, and crucially, if they had been wholly or substantially dependent on the Australian relative for financial support for a substantial period.

The Tribunal found that the applicant, aged 70, met the age requirement and did not have a spouse. However, the Tribunal concluded that there was insufficient evidence to demonstrate that the applicant had been wholly or substantially dependent on her nephew for financial support for a substantial period prior to lodging the visa application. The Tribunal applied the definition of "dependent" in regulation 1.05A, which requires reliance for financial support to meet basic needs, and that this reliance must be greater than reliance on any other source. The Tribunal also noted that "substantial period" is construed as a "reasonable period" and that the definition of dependence does not imply necessity or lack of choice.

Consequently, as the applicant failed to satisfy the dependency requirement, the Tribunal affirmed the decision under review.