History Repeating

This week we have celebrated another successful Administrative Appeals Tribunal result for a client meaning that the Department of Immigration’s decision to cancel her visa has been set aside and so her permanent residency visa has been reinstated. This was a very important win for our client and her family, but the way in which this case was won was particularly noteworthy.

To summarise the case, the client was granted her permanent residency as a secondary applicant based on her dependency to her parents, but was later cancelled when she attempted to sponsor her Partner for a visa years later and the case officer found inconsistencies with information provided. The case officer found that during the relevant time where the client was required to be dependent on her parents, she was earning a high enough salary to be self-sufficient and so could not have been dependent on her parents. At the Tribunal, we were able to successfully argue that the legislative framework regarding dependency does not require that there be a lack of choice before an applicant can be said to be wholly or substantially dependent or reliant on another person for financial support. Rather, the proper question is simply whether at the appropriate point in time the visa applicant was, as a matter of fact, relying on the sponsor for financial support to meet her basic needs for food, clothing and shelter.

This complex legal argument was contrary to the Department of Immigration policy manual which guided decision makers to assess whether the applicant needed to rely on the sponsor regardless of whether there was actual reliance. However, we were able to rely on a precedent set in the Full Federal Court case of Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122 (31 July 2006) in order to override this policy. Amazingly, this precedent was established by our own firm back in 2006 with Jane McGrath acting as solicitor!