Jeanineh Hilsaca (Migration)

This matter concerned an appeal by Jeanineh Hilsaca, the secondary applicant, against a decision relating to an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The primary applicant, Loor Hilsaca Sarras, had been granted a Subclass 836 visa on 30 March 2021. The dispute centred on whether Jeanineh Hilsaca, as a dependent child of the primary applicant, continued to meet the criteria for a member of the family unit at the time of the decision. The case was heard by Margie Bourke.

The legal issues before the Tribunal were whether the applicant, Jeanineh Hilsaca, met the definition of a "dependent child" under the Migration Regulations at the time of his visa application on 4 February 2014, and whether he continued to be a dependent child of the primary applicant at the time of the decision, as required by clause 836.321 of Schedule 2 to the Regulations. Specifically, the Tribunal had to consider whether the applicant, being over 18 years of age, was financially dependent on his mother or incapacitated for work due to a loss of bodily or mental functions.

The Tribunal found that the applicant was the biological son of the primary visa applicant and was 22 years old at the time of application. While the applicant claimed financial dependency and provided a medical report detailing treatment for anxiety and depression between 2015 and 2017, the report did not indicate incapacitation for work, suggesting that engaging in activities aided his recovery. The Tribunal was satisfied that the applicant was not married, engaged, or in a de facto relationship. However, there was insufficient evidence to establish that the applicant was incapacitated for work due to a loss of bodily or mental functions, nor was there a clear assessment of his financial dependency at the time of the decision.

Consequently, the Tribunal remitted the application for the Subclass 836 visa back to the Department for reconsideration. The Tribunal directed that the criteria under clause 836.321 of Schedule 2 to the Regulations were met, but the remaining criteria for the visa were to be considered by the Minister.