Susarla (Migration)

This matter concerned an appeal by an applicant seeking to be granted a Skilled – Independent (Permanent) (Class SI) visa, Subclass 189, as a member of the family unit of the primary applicant. The applicant's parent was the primary applicant who had satisfied the criteria for the visa. The dispute centred on whether the applicant, who had turned 23 years of age, met the secondary criteria to be included as a dependent family member. The decision was made by Catherine Carney-Orsborn, a Member of the Tribunal.

The legal issue before the Tribunal was whether the applicant satisfied the criteria for being a "dependent" under Regulation 1.05A(1)(b) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was wholly or substantially reliant on the primary applicant for financial support because the applicant was incapacitated for work due to the total or partial loss of bodily or mental functions.

The Tribunal reasoned that while substantial evidence was provided to demonstrate the applicant's financial reliance on the primary applicant, no evidence was presented to establish that the applicant was incapacitated for work due to a loss of bodily or mental functions. The Tribunal noted that the applicant studied and worked, which was inconsistent with being incapacitated for work. Consequently, the Tribunal found that the applicant did not meet the requirements of Regulation 1.05A(1)(b) and therefore did not satisfy the criteria for the grant of a Subclass 189 visa under clause 189.311.

The Tribunal affirmed the decision not to grant the applicant a Skilled – Independent (Permanent) (Class SI) visa.