Shipton (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 186 Employer Nomination Scheme visa, where the applicant sought to establish dependency on the primary visa holder, her sibling. The applicant, a 25-year-old from England, had been residing in Australia since 2014 and claimed to be financially and emotionally dependent on her 30-year-old sister, who held a permanent visa. The primary visa holder was married with a young child, and the applicant played a significant role in the care of this child as an integral part of the extended family unit.

The central legal issue before the Tribunal was whether the applicant met the criteria for dependency on the primary visa holder, as required for a secondary visa. This involved assessing the nature of their relationship, the applicant's financial situation, and the concept of her residence or place of abode in the context of Australian migration law. The Tribunal was required to determine if the evidence presented established an "inextricable connection" and genuine dependence, considering the applicant's employment and her living arrangements, which included residing with the primary visa holder and also with her boyfriend.

The Tribunal's reasoning focused on the evidence presented by the applicant and witnesses, including the primary visa holder and her husband. They testified to a long-standing, deep connection between the sisters, stemming from childhood and continuing through the primary visa holder's provision of nurturing and financial support. The Tribunal noted the applicant's role in caring for the primary visa holder's daughter and the shared decision-making within the family unit. Despite the applicant being employed full-time, the Tribunal accepted that she was still dependent to a degree on the primary visa holder's financial support. The Tribunal found that the evidence demonstrated an inextricable connection and a significant level of interdependence, particularly in the context of family support and caregiving.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal remitted the application for a secondary Temporary Residence Transition (Subclass 186) visa with a direction that the applicant met the criteria under cl.186.311 of Schedule 2 to the Regulations.