Malabute (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Malabute for an Extended Eligibility (Temporary) (Class TK) visa, specifically a Subclass 445 (Dependent Child) visa. The applicant's eligibility for this visa was contingent on their mother holding a Partner visa. However, the mother's Partner visa had been cancelled. The AAT was tasked with determining whether the applicant was entitled to the Dependent Child visa given the cancellation of their mother's visa, and if not, whether the cancellation of the mother's visa should be set aside.

The primary legal issue before the AAT was whether the applicant met the criteria for the Subclass 445 visa, particularly in light of the cancellation of their mother's Partner visa. This involved considering the relationship between the applicant's eligibility and their mother's visa status, and whether the cancellation of the mother's visa had retrospective effect on the applicant's application. The AAT also had to determine if there were grounds to set aside the cancellation of the mother's Partner visa.

The AAT reasoned that the cancellation of the mother's Partner visa was a critical factor. It found that the applicant's eligibility for the Dependent Child visa was directly linked to their mother holding a valid Partner visa. Upon reviewing the circumstances surrounding the cancellation of the mother's Partner visa, the AAT determined that the cancellation decision was flawed and should be set aside. Consequently, the AAT remitted the matter of the mother's Partner visa for further consideration. This effectively meant that the applicant's eligibility for the Dependent Child visa could be reassessed based on the potential for their mother to hold a valid Partner visa.