MAI (Migration)

This matter concerned a review by the Tribunal of a decision to refuse a Partner (Temporary) (Class UK) visa, Subclass 820, to a 20-year-old Vietnamese citizen. The applicant was included as a dependent child on her mother's visa application. The original delegate refused the visa on the grounds that the applicant was not a dependent child, as they were not satisfied she lived with her mother and stepfather or was wholly or substantially reliant on her mother for financial support for basic needs.

The Tribunal was required to determine whether the applicant met the definition of a "dependent child" as defined in regulation 1.03 of the Migration Regulations 1994. This definition includes a child who is over 18 and dependent on a person, or incapacitated for work. The Tribunal noted that the applicant was over 18, not engaged to be married, and had no spouse or de facto partner, nor was she incapacitated for work. Therefore, the Tribunal had to consider the definition of "dependent" under regulation 1.05A.

The Tribunal reasoned that for a person to be considered dependent under regulation 1.05A(1)(a), they must have been wholly or substantially reliant on the other person for financial support for basic needs for a substantial period immediately before the time of assessment, and this reliance must be greater than reliance on any other person or source of support. The Tribunal found that based on the material before it, including evidence of the applicant's university enrolment, Medicare card, and bank statements, the applicant met the criteria for being a dependent child under clause 820.311(a)(i) and clause 820.321(a) of Schedule 2 to the Regulations.

Accordingly, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant meets the specified criteria for a Subclass 820 visa.