Cilliers (Migration)

This matter concerned an appeal by an applicant for a Skilled Independent (Permanent) visa (Subclass 189). The applicant had made a combined application with her mother, the primary applicant, who was granted the visa. The delegate had refused to grant the applicant a visa on the basis that she was not a 'member of the family unit' of the primary applicant. The Tribunal was required to determine whether the applicant met the criteria for being a 'member of the family unit' as defined by the Migration Regulations.

The central legal issue was whether the applicant was 'dependent' on her mother, the primary visa holder, for financial support to meet her basic needs of food, clothing, and shelter. The definition of 'dependent' in regulation 1.05A requires that the applicant be wholly or substantially reliant on another person for financial support for a substantial period, and that this reliance must be greater than reliance on any other person or source. Alternatively, dependency can arise from an incapacity for work due to loss of bodily or mental functions. The Tribunal noted that the terms of the regulation do not imply necessity or lack of choice, but rather focus on the factual reality of reliance.

The Tribunal found that the applicant had made a combined application with her mother, who held a Subclass 189 visa granted on the primary criteria. However, the delegate had found the applicant was not wholly or substantially reliant on her parents for financial support, given her casual employment. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria under clause 189.311 of Schedule 2 to the Regulations.