Discion (Migration)

This matter concerned a visa applicant who was a secondary applicant on his mother’s prospective marriage and partner visa applications. The applicant’s visa was refused on the basis that he did not meet clause 820.311(a)(i) of the Migration Regulations 1994, nor did he satisfy regulation 1.05A, which defines a dependent person. The delegate found that the applicant, who was 21 years old at the time of application, was not a dependent child of his mother and stepfather.

The primary legal issue before the court was whether the visa applicant was a dependent child of his mother at the time of his visa application, specifically on 4 October 2016, and for a substantial period immediately preceding that date. This required an assessment of whether the applicant was wholly or substantially reliant on his mother for financial support to meet his basic needs, and whether this reliance was greater than any reliance on other persons or sources of support.

The Tribunal found that the visa applicant, his mother, and stepfather were credible witnesses. It accepted their evidence that the applicant had been unemployed and working on the family farm, and that his mother and/or stepfather had provided financial support through an aunt for his care and airfare to Australia, including accommodation and financial assistance. The Tribunal noted that the applicant commenced employment after the date of application, rendering that subsequent employment irrelevant to the dependency assessment.

Consequently, the Tribunal concluded that the visa applicant met the criteria under clause 820.311 of Schedule 2 to the Regulations. The application was remitted to the Minister for reconsideration of the remaining criteria for a Subclass 820 (Partner) visa.