1507745 (Migration)

This matter concerned an application for a Subclass 445 (Dependent Child) visa. The applicants claimed to be dependent children of a visa-holding parent. The applicants' mother, Ms TRAN Thi Thanh Thuy, had been granted a Subclass 820 (Spouse) visa on 2 October 2013, sponsored by Mr TRUONG Tan Thong. However, this visa was refused by the department on 28 May 2015, meaning Ms Tran ceased to be a visa-holding parent on that date. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicants met the criteria for a Subclass 445 visa, specifically whether their mother was a "visa-holding parent" at the time the department made its decision.

The central legal issue was the interpretation of "visa-holding parent" as defined in clause 445.111 of the regulations. This clause lists specific visa subclasses that qualify a parent as a "visa-holding parent," including Subclass 820 (Spouse). The Tribunal had to consider whether the applicants' mother met this definition at the time the department made its decision on 1 June 2015, given that her Subclass 820 visa had been refused on 28 May 2015. A further consideration was whether a Subclass 801 (Partner) visa, which Ms Tran was later found to meet the criteria for, would satisfy the definition of a "visa-holding parent" for the purposes of the Subclass 445 visa application.

The Tribunal reasoned that for the applicants to be considered dependents of a visa-holding parent, their mother must have held one of the specified visa subclasses at the time the department made its decision. As Ms Tran's Subclass 820 visa was refused on 28 May 2015, she was not a visa-holding parent when the department made its decision on 1 June 2015. The Tribunal noted that it could not "cure" this deficiency, as the applicants could not be considered dependents of a visa-holding parent if their mother did not hold such a visa at the relevant time. Furthermore, the Tribunal found that even if Ms Tran were granted a Subclass 801 visa, this subclass is not listed in clause 445.111 as meeting the definition of a "visa-holding parent," and therefore, the Tribunal would have no basis to remit the applicants' case on a conditional basis. The Tribunal affirmed the decision not to grant the visa applicants a Subclass 445 (Dependent Child) visa.