Zapata Lanz (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant, an 80-year-old woman, sought the visa on the basis of her relationship with her daughter, Raquel Beatriz Salmeron Zapata, an Australian citizen. The core of the dispute revolved around whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant was an "aged dependent relative" of her Australian relative, Raquel. This involved assessing whether the applicant met the criteria of being a "relative" within the meaning of regulation 1.03, not having a spouse or de facto partner, having been dependent on the Australian relative for a substantial period and remaining so dependent, and being of an age to qualify for an aged pension under the Social Security Act 1991. The central legal issue was the applicant's dependency on her daughter.

The Tribunal found that the applicant was an Australian citizen's daughter, was divorced and without a spouse or de facto partner, and was of an age to qualify for an aged pension, satisfying these aspects of the definition. However, the Tribunal concluded that the evidence regarding the applicant's dependency on her daughter, Raquel, was not sufficiently established to make a final determination. The Tribunal noted that while there was evidence of bank transfers and living conditions in Venezuela, these did not definitively prove the required level of dependency for a substantial period.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations, but the question of dependency required further assessment.