PHAM (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision by a delegate of the Minister for Immigration to refuse a Partner (Provisional) (Class UF) Subclass 309 visa. The primary applicant, Ms Thi Chi Phung, applied for the visa based on her spousal relationship with the review applicant, Mr Van Tinh Pham. The visa applicant, Mr Cong Sy Vuong, is Ms Phung's son and was included as a secondary applicant. The delegate refused the visa on the grounds that Mr Vuong did not satisfy clause 309.311 of Schedule 2 to the Migration Regulations 1994, specifically that he was not dependent on Ms Phung as defined in regulation 1.03.

The AAT was required to determine whether the visa applicant, Mr Cong Sy Vuong, met the criteria for a Subclass 309 visa, particularly the secondary criteria relating to his dependency on the primary applicant, Ms Thi Chi Phung. This involved interpreting the definitions of "dependent child" and "dependent" as set out in regulations 1.12 and 1.05A of the Migration Regulations 1994, respectively. The Tribunal also considered the criteria outlined in clauses 309.311 and 309.321 of Schedule 2 to the Regulations.

The Tribunal reasoned that the primary applicant, Ms Phung, was the "family head" and the visa applicant, Mr Vuong, was her dependent son. The Tribunal noted that a Subclass 101 Child visa had been granted to Mr Vuong on 8 December 2020, which required consideration of the definition of a "dependent child" under regulation 1.05A. Reflecting on this prior decision, the Tribunal was satisfied that Mr Vuong was a dependent of Ms Phung as defined in regulation 1.05A. Consequently, the Tribunal found that Mr Vuong met the requirements of clause 309.311 and clause 309.321 of Schedule 2 to the Regulations.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration. The direction was that the visa applicant, Mr Cong Sy Vuong, meets the criteria specified in clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations.