Menicou (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, and a Partner (Migrant) (Class BC) visa, subclass 100. The applicant, Ms. Xinting Wu, sought to be recognised as a member of the family unit of the primary applicant, Ms. Wenfang Zhou, who was the spouse of the review applicant, Mr. Peter Menicou. The dispute centred on whether Ms. Wu met the criteria for being a dependent child under the relevant regulations.

The Administrative Appeals Tribunal (AAT) was required to determine whether Ms. Wu satisfied the secondary criteria under clause 309.321 of the Migration Act 1958 (Cth) and clause 100.311 of the Migration Regulations 1994 (Cth) for the grant of the visas. Specifically, the Tribunal had to assess if Ms. Wu, as the biological child of Ms. Zhou and therefore the stepdaughter of Mr. Menicou, qualified as a "member of the family unit" by being dependent on either Ms. Zhou or Mr. Menicou.

The Tribunal considered the definition of "member of the family unit" in regulation 1.12 of the Regulations, which includes a child who has turned 18 but not 23 and is dependent on the family head or their spouse or de facto partner. The Tribunal also applied the definition of "dependent" in regulation 1.05A, which requires substantial reliance for financial support for basic needs, with that reliance being greater than any other source of support. The Tribunal accepted that Ms. Wu was the biological child of Ms. Zhou and the stepdaughter of Mr. Menicou. Evidence indicated Ms. Wu was 20 years of age and studying full-time, and that financial support was being provided.

The Tribunal concluded that the evidence presented satisfied the criteria for the grant of a Subclass 309 – Partner (Provisional) visa and a Subclass 100 – Partner visa. Consequently, the Tribunal remitted the decision under review for reconsideration, finding that the secondary applicant met the relevant legal requirements.