Hassani (Migration)

The Administrative Appeals Tribunal considered an appeal by a visa applicant concerning a Partner (Provisional) (Class UF) visa, Subclass 309. The primary issue was whether the applicant met the criteria for being a dependent child under regulation 1.03(b) of the Migration Regulations 1994, specifically whether the applicant was dependent on his father, the review applicant. The Tribunal was tasked with determining if the applicant qualified as a member of the family unit for the purposes of the visa application, despite initial evidence provided to the Department that appeared to contradict his later claims of dependency.

The Tribunal was required to assess whether the applicant met clause 309.311 of Schedule 2 to the Regulations, which stipulates that an applicant must be a member of the family unit of, and have made a combined application with, a person who satisfies the primary criteria for the visa. This, in turn, required consideration of regulation 1.03, which defines a "dependent child" as a child who has turned 18 and is dependent on a parent, or is incapacitated for work. The delegate had previously refused the visa, placing greater weight on the applicant's initial statement of being employed and contributing to his mother, and finding a lack of credible evidence of dependency on his father.

The Tribunal found that the delegate's decision was not supported by the evidence before it. It noted that the applicant had sought to correct his initial statements, asserting unemployment and complete reliance on his father, and that he was continuing his studies. The Tribunal considered substantial submissions, statutory declarations, educational documents, and a psychological report. Based on this comprehensive review, the Tribunal concluded that the applicant did meet the criteria of being a dependent child and a member of the family unit.

Consequently, the Tribunal remitted the application for a Partner (Provisional) visa for reconsideration by the Minister. The remittal was made with a direction that the visa applicant meets the criteria specified in clauses 309.311 and 309.321 of Schedule 2 to the Regulations.