1502088 (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a partner visa application. The primary applicant, Mr. Van Le, had included his son, Mr. Anh Thi Le, as a secondary applicant. The central dispute was whether Mr. Anh Thi Le qualified as a "dependent child" of Mr. Van Le for the purposes of the visa application.

The Tribunal was required to determine if Mr. Anh Thi Le met the definition of a "dependent child" as set out in the Migration Regulations. Specifically, the Tribunal had to consider whether Mr. Anh Thi Le, who was over 18 at the time of the visa application, was either incapacitated for work or dependent on his father for financial support to meet his basic needs. The Tribunal also had to assess whether he continued to be a member of Mr. Van Le's family unit at the time of the decision.

The Tribunal's reasoning focused on the definition of "dependent child" in regulation 1.03 and the test for dependency in regulation 1.105A. The evidence presented, including oral testimony from witnesses and remittance advices, indicated that Mr. Anh Thi Le was over 18 at the time of the application and had not turned 18. There was no evidence of incapacity for work. However, the Tribunal found that Mr. Anh Thi Le had satisfied the dependency test under regulation 1.105A, demonstrating that he was wholly or substantially reliant on his father for financial support to meet his basic needs for a substantial period, and that this reliance was greater than any reliance on other sources.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration. The Tribunal directed that the visa applicant, Mr. Anh Thi Le, met the criteria specified in clauses 309.311 and 309.321 of Schedule 2 to the Regulations.