Lakey (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The central dispute revolved around whether the applicant's son qualified as a "dependent child" or a "member of the family unit" of the primary applicant, his mother, at both the time of application and the time of the decision.

The Tribunal was required to determine if the applicant's son met the criteria for being a dependent child or a member of the family unit as defined in the Migration Regulations. Specifically, the Tribunal had to assess whether the son was dependent on his mother, either due to financial reliance for basic needs or incapacitation for work, and whether he met the age requirements for a dependent child.

The Tribunal reasoned that the applicant's son, who was over 18 and living separately, was not incapacitated for work, despite a medical report suggesting a potential mental health condition. This conclusion was based on the son's consistent full-time employment, which indicated an ability to maintain steady work. Furthermore, the Tribunal found that while the son received some financial assistance from his mother, this support was substantially less than his own income, which he used to meet his basic needs for food, clothing, and shelter. Consequently, the Tribunal determined that the son did not meet the definition of a dependent child or a member of the family unit at the time of the application.

Despite affirming the decision not to grant the visa, the Tribunal noted the applicant's long period of residence in Australia and the potential difficulties he might face if required to return to South Africa, including the possibility of discrimination and high crime rates. In light of these circumstances, the Tribunal indicated support for an application for Ministerial intervention.