NICHOLSON (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Extended Eligibility (Temporary) (Class TK) visa, subclass 445. The applicant, a 24-year-old male from the United Kingdom, claimed to be dependent on his mother, Ms Kennedy, who held a temporary partner visa in Australia. The subclass 445 visa is for a child of a parent holding a temporary partner visa, requiring sponsorship from the same person sponsoring the parent.

The central legal issue before the Tribunal was whether the applicant was a "dependent child" of his mother at the time of the visa application and at the time of the decision. This required an assessment of whether the applicant was "wholly or substantially reliant" on his mother for financial support for his basic needs of food, clothing, and shelter, and whether this reliance was greater than any reliance on other persons or sources of support. The definition of "dependent child" also includes a child over 18 who is incapacitated for work, which was not contended here.

The Tribunal found that after the applicant's mother migrated to Australia, he lived with a family friend, Ms Deans, in return for household chores. While his mother provided him with money and occasionally posted more if needed, and also provided funds for his studies and some purchases, the Tribunal was not satisfied that this constituted being "wholly or substantially reliant" for financial support. The applicant's reliance on Ms Deans for shelter, in exchange for chores, and the limited documentary evidence of financial support, including payments for clothing and study in 2016, did not meet the threshold for dependency as defined by the regulations.

Consequently, the Tribunal concluded that the applicant did not satisfy the primary criteria under clause 445.211, which requires the applicant to be a dependent child of a visa-holding parent. The Tribunal affirmed the decision not to grant the applicant the subclass 445 visa.