Jankovic v Minister for Immigration and Ethnic Affairs

In the case of Jankovic v Minister for Immigration and Ethnic Affairs, the applicants, Bozidar Jankovic and Ljubica Kuga, sought a preferential family visa for Jankovic, who was residing in Yugoslavia at the time. Kuga, Jankovic's sister, was an Australian citizen and sponsored his application. The application was rejected on the basis that Jankovic's two daughters, who were residing with their mother in Yugoslavia, were classified as "non-dependent children" and therefore "overseas near relatives," disqualifying Jankovic from the classification of a "remaining relative" under the regulations. The applicants appealed this decision.

The primary legal issue in this case was the interpretation of the term "non-dependent child" as used in the regulations. The applicants argued that the term should be given its plain and ordinary meaning, which they interpreted as a child who is not reliant upon any person in any manner. The court, however, rejected this interpretation, holding that the term should be read in the context of the regulations and in harmony with the definitions of "dependent" and "dependent child." The court found that the term "non-dependent child" was intended to exclude children who could attach themselves to the visa application of their parent under regulation 108.

The court held that the term "non-dependent child" should be interpreted as any child of an applicant who is not a "dependent child," which is determined by whether the child falls within the definition of "dependent child." In this case, the daughters were not wholly or substantially in the daily care and control of Jankovic, and therefore, they were "non-dependent children." Consequently, Jankovic was disqualified from the classification of a "remaining relative," and the appeal was dismissed.

The court further ordered that the appellants pay the respondent's costs of the appeal.