Inclusion of Family Members – Successful grant

August 25, 2021 - Published Cases

0806664 [2009] MRTA 970

The applicant had applied for a subclass 309 Offshore Spouse Visa and had included his parents and half-sister in the application. The applicant’s initial application had failed because he had could not show that his parents and half-sister were ‘members of the family unit’. According to legislation, a person is only considered a ‘member of the family unit’ if they have never been married, or are widowed, divorced or separated. The issue was that at the time of application, the applicant’s parents were legally married and were living together with the applicant.

We argued before the Tribunal that the applicant’s parents were actually separated, and had been for a number of years. The only reason why the applicant’s parents were still living under the same roof was because they were both financially dependent on the applicant, and moreover they had separate rooms and minimal contact. Unfortunately, the applicant’s parents had not told the Department of this because they wanted to present a simplified and unified impression of the family to the Department. They had not sought any legal advice when they first lodged the application so were unaware of the legal consequences.

These arguments were successful.

The other issue was the applicant’s half-sister. At the time of application, the applicant’s half-sister was working full time as a trainee. The issue was whether or not his half-sister was considered a dependant for the purposes of this visa. We argued that, though the applicant’s half-sister had enough money to support herself, she nevertheless chose to live with the applicant and spend her earnings on other things. We argued that to be considered dependant, the applicant’s half-sister did not need to demonstrate that she needed to rely on the applicant, but that, as a matter of fact, she relied on the applicant for financial support to meet her basic needs.

Our arguments for the applicant’s half-sister were also successful.

The matter was remitted for reconsideration and the visa was granted.

Related Link: MRT Decision

Originally posted on August 8, 2010 @ 2:00 pm