Koblitz (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant sought to be recognised as a member of the family unit of the primary visa holder. The core of the dispute revolved around whether the applicant, who was over 18 years of age, qualified as a "dependent child" under the Migration Regulations.

The Tribunal was required to determine if the applicant continued to be a member of the family unit of the primary visa holder at the time of the decision, as stipulated by clause 309.321 of Schedule 2 to the Migration Regulations. This involved interpreting the definitions of "member of the family unit" and "dependent child" within the Regulations, specifically whether the applicant's mental health condition, Post-Traumatic Stress Disorder (PTSD), rendered them incapacitated for work due to a total or partial loss of mental functions, and if they were wholly or substantially reliant on the primary applicant for basic needs.

The Tribunal reasoned that the definition of "dependent child" in regulation 1.03 includes a child who is incapacitated for work due to the total or partial loss of bodily or mental functions. Furthermore, regulation 1.05A defines "dependent" to include a person who is wholly or substantially reliant on another person for financial support due to such incapacity. The Tribunal found that the applicant, who was over 18, suffered from PTSD and was wholly or substantially reliant on the primary applicant for financial support due to this condition. The Tribunal also noted that the applicant's relationship with a "boyfriend" in Singapore did not constitute a de facto relationship.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) Subclass 309 visa for reconsideration. The Tribunal directed that the visa applicant met the criteria under clause 309.311 and clause 309.321 of Schedule 2 to the Regulations.