Larkins (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The primary applicant sought to migrate to Australia, claiming a relationship with an Australian citizen sister, Mrs Wanna Li Larkins. A secondary applicant, the primary applicant's 26-year-old daughter residing in the People's Republic of China, also sought to migrate as a dependent. The review applicant was Mrs Li Larkins, the Australian citizen sister. The decision was made by Senior Member Justin Owen of the Tribunal.

The central legal issues before the Tribunal were whether the secondary applicant, aged 26, qualified as a ‘dependent’ of the primary applicant at the time of the decision and for a substantial period prior. If the secondary applicant was not a ‘dependent’, the Tribunal had to determine if she was a ‘member of the family unit’ of the primary applicant. Crucially, if the secondary applicant was neither a ‘dependent’ nor a ‘dependent child’, the Tribunal had to consider if she was a ‘near relative’ of the primary applicant, which would impact the primary applicant's eligibility under regulation 1.15(1)(c) of the Migration Regulations 1994.

The Tribunal reasoned that for the secondary applicant to be considered a ‘dependent’ under regulation 1.05A, she would need to have been dependent for a substantial period. The definition of ‘near relative’ in regulation 1.15(2) includes a child who has turned 18 and is not a ‘dependent child’. The Tribunal found that the secondary applicant, being over 18 and not meeting the definition of ‘dependent’, was therefore a ‘near relative’ of the primary applicant. As the primary applicant had a near relative (her daughter) who was not usually resident in Australia and was not an Australian citizen, permanent resident, or eligible New Zealand citizen, the primary applicant failed to satisfy regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the Other Family (Migrant) (Class BO) visas to the applicants.