1906399 (Migration)

This matter concerned an application for a Subclass 864 (Contributory Aged Parent) visa. The applicant, a son of the primary visa holder, was seeking to be recognised as a member of the family unit for the purposes of the visa. The dispute arose because the applicant had turned 23, and his eligibility as a secondary applicant depended on whether he met the criteria for being a dependent child under the relevant regulations. The decision was made by a member of the Tribunal.

The Tribunal was required to determine whether the applicant qualified as a member of the family unit of the primary visa holder, his mother, under regulation 1.12(2)(b)(iii) of the Migration Regulations 1994. This subclause requires that a person who has turned 23 is dependent on the family head or their spouse or de facto partner, and that this dependency arises under regulation 1.05A(1)(b). Regulation 1.05A(1)(b) specifies that dependency exists if the person is wholly or substantially reliant on another person for financial support due to being incapacitated for work because of the total or partial loss of bodily or mental functions.

The Tribunal found that the primary visa applicant, the applicant's mother, had been granted a Subclass 864 visa. It was also satisfied that the applicant was her son and that his father was deceased. Crucially, the Tribunal considered the applicant's psychiatric assessment and report, which indicated low intellectual functioning with no capacity for education or paid work. Based on this evidence, the Tribunal was satisfied that the applicant was wholly or substantially reliant on his mother for financial support due to his incapacity for work, thus meeting the definition of dependency under regulation 1.05A(1)(b). Consequently, the Tribunal concluded that the applicant met the criteria under clause 864.321.

The Tribunal ordered that the application for the Contributory Aged Parent (residence) (class DG) visa be remitted back to the Department for reconsideration, with the direction that the visa applicant meets the requirements of clause 864.321 of Schedule 2 to the Regulations.