Huong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, born in Vietnam in 1992, arrived in Australia in June 2016 as a dependant on her mother's Visitor (Subclass 600) visa. Subsequently, her mother applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa, including the applicant as a dependent child. The applicant's eligibility as a dependent child hinged on her being "wholly and substantially financially dependent" on her mother and studying full-time. Following requests for further information regarding this dependency, the applicant's visa was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant sought judicial review of this decision in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant met the definition of a "dependent child" under regulation 1.03 of the Migration Regulations 1994 (Cth) at the time of her visa application. Specifically, as the applicant had turned 18, the Court had to determine if she was "dependent on that person" (her mother) as required by subclause (b)(i) of the definition, given that she did not claim to meet the alternative criterion of being incapacitated for work.

Jarrett J reasoned that the applicant needed to demonstrate dependency on her mother at the time of the visa application to satisfy the secondary criteria under clause 820.311(a)(i) of the Migration Regulations. The Court noted that the parties agreed that the applicant had turned 18 and did not claim incapacity for work, meaning only the dependency limb of the definition was relevant. The delegate had found that the applicant was not wholly or substantially reliant on her mother and stepfather to meet her basic needs on the day the visa application was lodged. Consequently, the Court concluded that the applicant had not established the required dependency, and therefore, the delegate's adverse finding under clause 820.311(a)(i) was not impugned. The application for review was dismissed with costs.