Le (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143. The review applicant was the son of the primary visa applicant, who had been granted the Subclass 143 visa. The central dispute was whether the review applicant continued to be a member of the family unit of the primary visa holder, as required by regulation 1.12(1)(b) of the Migration Regulations 1994, applying the definition in force prior to 19 November 2016. The Administrative Appeals Tribunal, constituted by Margie Bourke, was required to determine this issue.

The legal issue before the Tribunal was whether the visa applicant met the requirements of clause 143.321 of Schedule 2 to the Regulations, which mandates that a secondary applicant must continue to be a member of the family unit of a person who holds a Subclass 143 visa. This required an assessment of whether the visa applicant's parents, despite intending to reside in different countries for a period, remained in a continuing and genuine marriage, and whether the applicant remained a dependent child or partner of the family head. The Tribunal also considered the significance of financial support receipts being in the mother's name.

The Tribunal reasoned that the visa applicant was the biological child of the primary visa holder and his wife. Despite the parents' intention for the father to move to Australia while the mother remained in Vietnam to care for her elderly father, the Tribunal found, based on oral evidence, Vietnamese household registration, and joint property ownership, that their marriage was continuing and supportive. The Tribunal accepted the mother's intention to join her husband and son in the future. The Tribunal was satisfied that the visa applicant, aged 27, was single, a student, unemployed, had always lived with his parents, and had been financially supported by them. The fact that financial support receipts were in the mother's name did not, in these circumstances, indicate a separation.

Consequently, the Tribunal remitted the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration by the Minister, with a direction that the visa applicant met the criteria under clause 143.321 of Schedule 2 to the Regulations.