Ye (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision regarding a Subclass 309 (Partner (Provisional)) visa application. The applicant, who was a secondary applicant and claimed to be the dependent child of the primary visa holder, sought to satisfy the criteria under clause 309.321 of the Migration Regulations 1994. The primary applicant had been granted the Subclass 309 visa.

The central legal issue before the Tribunal was whether the visa applicant continued to be a "member of the family unit" of the primary visa holder at the time of the decision, as defined by Regulation 1.12 of the Migration Regulations 1994. This definition outlines the criteria for being considered a member of a family unit, including being a child who is dependent on the family head and has not yet turned 23. The applicant argued that a substantial visa processing delay, coupled with mental health issues and a claimed physical incapacity for work, prevented him from meeting the requirements.

The Tribunal considered the definition of "member of the family unit" under Regulation 1.12(2)(b), which includes a child or step-child who has turned 18 but not 23 and is dependent on the family head. The Tribunal found that the primary applicant was the "family head" and that the visa applicant was their child, based on the evidence provided. While the applicant presented evidence of depression, anxiety, and reliance on his mother for support, the Tribunal's reasoning focused on the definition of "member of the family unit" and the applicant's status as a child of the primary applicant. The Tribunal concluded that the visa applicant met the criteria of being a child of the primary applicant, who held the Subclass 309 visa.

The Tribunal affirmed the decision under review.