Zdybicka (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa, made by Ms Daniela Zdybicka against her claimed sister, Ms Marta Kaczmarek, an Australian citizen. The applicant, born in 1943, arrived in Australia in October 2017 and lodged her visa application shortly thereafter, at which time she was 74 years old. She asserted that she had been dependent on her sponsor for over 17 years, was divorced with no children, and that her sponsor was her only family member residing in Australia.

The primary legal issues before the Tribunal were whether the applicant met the definition of an 'aged dependent relative' and whether she had been living independently during the relevant period. Specifically, the Tribunal had to consider if the applicant was unable to work, had been wholly reliant on the sponsor for financial support for a substantial period, and had been meaningfully living independently.

The Tribunal found that the applicant met certain criteria for the Subclass 838 visa, including those related to her age and the definition of a relative. However, it determined that the applicant had not been meaningfully living independently during the relevant period. While she had previously owned an apartment and worked, she was unemployed at the time of application and had no other source of income. The Tribunal noted that she had resided with her sponsor in Australia and relied on her for food, clothing, and shelter. Consequently, the Tribunal concluded that the applicant had been wholly reliant on the sponsor for financial support for a substantial period.

As a result of these findings, 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 that further consideration was required for the remaining criteria.