Zhang (Migration)

The Administrative Appeals Tribunal considered the case of Ms Zhang, an applicant for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The visa application was made by Ms Zhang, who relied on her Australian relative, Ms Fan, as a sponsor. The core dispute revolved around whether Ms Zhang met the definition of an "aged dependent relative" at the time of her application and continued to meet that criterion.

The Tribunal was required to determine whether Ms Zhang was wholly or substantially reliant on Ms Fan for financial support to meet her basic needs for food, clothing, and shelter, and whether this reliance was greater than her reliance on any other person or source of support. The Tribunal also had to consider whether Ms Zhang's reliance was due to the total or partial loss of her bodily or mental functions. Furthermore, the Tribunal examined whether the period of dependency was a "reasonable period," including time before Ms Zhang's arrival in Australia.

The Tribunal accepted the oral evidence of Ms Fan and other witnesses, acknowledging Ms Zhang's inability to attend the hearing due to medical conditions. However, despite accepting the veracity of the evidence regarding financial transfers, the Tribunal found that it did not demonstrate that these funds were used to meet Ms Zhang's basic needs. Specifically, the Tribunal noted that Ms Zhang was the beneficiary of her deceased father's estate, which included an apartment, meaning she was not reliant on Ms Fan for shelter at that time. While Ms Fan had contributed to relief efforts and the Australian Chinese community, and there was a suggestion that Ms Fan might not have a realistic option to return to China, these factors did not establish the required dependency for the visa subclass.

Ultimately, the Tribunal affirmed the delegate's decision not to grant Ms Zhang the visa. While acknowledging the potential benefits to the Australian community if Ms Zhang remained, the Tribunal concluded that the criteria for an aged dependent relative visa were not met. The Tribunal did, however, consider it appropriate to make a referral to the Minister.