McGill (Migration)

The Administrative Appeals Tribunal considered an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant was seeking this visa as a secondary applicant, claiming to be a member of the family unit of the primary applicant, who held the same subclass visa. However, the primary applicant's visa status had since changed to a different subclass. The Tribunal also had regard to the reasons for the refusal of the original subclass visa and the applicant's age, which was between 18 and 22 years old, and whether he was wholly or substantially dependent on a parent.

The central legal issue before the Tribunal was whether the applicant qualified as a dependent child and therefore a member of the family unit of his mother at the time the application was made, such that he could be granted the Prospective Marriage (Temporary) (Class TO) visa. This involved assessing the truthfulness of information provided during a departmental interview, where the applicant had stated he was undertaking part-time study and part-time work. The applicant later explained this information was provided to create a better impression of himself. The Tribunal also noted that an application for a dependent child visa was in progress.

The Tribunal acknowledged the applicant's desire for family reunification and his close relationship with his mother. However, it found that it had no discretion to grant the visa on compassionate grounds. Having determined that the applicant was not a dependent child and not a member of his mother's family unit at the time of the application, the Tribunal concluded that the applicant did not meet the criteria stipulated in clause 300.311 of the relevant regulations. Consequently, the Tribunal affirmed the decision not to grant the applicant the Prospective Marriage (Temporary) (Class TO) visa.