Wu (Migration)

This matter concerned an appeal by Ruiting Wu against a decision regarding her nephew, Shuming Si, who was a secondary applicant for a Subclass 309 Partner (Provisional) visa. The primary applicant was Yucheng Si, the sponsor and partner of Ms Wu, and Shuming Si's father. The central dispute revolved around whether Shuming Si, aged 26, qualified as a "dependent child" of Yucheng Si, and therefore a member of the family unit, at the time of the visa application and at the time of the decision.

The court was required to determine two key legal issues. Firstly, whether Shuming Si met the criteria in clause 309.311 of the Migration Regulations 1994, which requires a secondary applicant to be a member of the family unit of the primary applicant at the time of the visa application. Secondly, the court had to consider whether Shuming Si continued to be a member of that family unit and met the requirements of clause 309.321, which mandates that the applicant remains a member of the family unit at the time of the decision. These provisions, read with regulation 1.12, necessitate Shuming Si being a "dependent child" of Yucheng Si.

The court reasoned that for Shuming Si to be considered a dependent child, he must meet the definition in regulation 1.05A. As he was over 18 at the time of application and the decision, the critical question was whether he was "dependent" on Yucheng Si. The review applicant asserted that Shuming Si was substantially financially dependent on his father, who allegedly met all his expenses while he studied, and that Shuming Si had never been employed. However, neither Yucheng Si nor Shuming Si attended the hearing, and attempts to contact Shuming Si were unsuccessful. Given the lack of direct evidence from the applicants and the need to fully assess the dependency claims, the court determined that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant, Shuming Si, meets the criteria in clauses 309.311 and 309.321 of Schedule 2 to the Regulations.