There is a sliver of a pathway for dependants aged over 23 to be granted a partner visa as a dependent for the subclass 820 visa at time of decision
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 24 May 2024
A person aged over 23 does not have to be incapacitated to still be a dependant at time of decision for the grant of the subclass 820 visa. The person must still be a dependant, of course. Often, one comes across cases where, during the whole of the processing stage, the secondary visa applicant turns 23 before there is a decision on the visa grant for the subclass 820 visa. There is a basis for those persons to be, still, granted the 820 visa
It is a sliver but is still a significant sliver.
Here’s how it works.
At time of decision for a secondary visa applicant, clause 820.321 states:
820.32 Criteria to be satisfied at time of decision
820.321
In the case of an applicant referred to in clause 820.311, the applicant:
(a) is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) visa (the person who satisfies the primary criteria); or
(b) is a person to whom each of the following applies:
(i) the person made a combined application with the person who satisfies the primary criteria;
(ii) subsequent to the combined application being made, the person was found by the Minister not to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria;
(iii) subsequent to the person who satisfies the primary criteria being granted a Subclass 820 (Partner) visa and a Subclass 801 (Partner) visa — the Tribunal found the person to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria.
[Clause 820.311 refers to a dependent child who is aged under 23 at time of application or is incapacitated for work and aged over 23.]
A close reading of clause 820.321 reveals that a person aged over 23 does not have to be incapacitated to still be a dependant.
This is because 820.321(a) refers only to “is a person who is dependent on”
‘Dependent’ in Reg 1.05A is defined as follows:
Reg 1.05A Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
As can be seen there is no requirement that the person be aged under 23 years at time of decision. But obviously the person must be a dependent as defined. I written in my paper on Dependants that a person can still be working but it still dependant eg see Tjahja (Migration) [2023] AATA. Further as discussed in Huynh v Minister for Immigration [2006] FCAFC 122, dependency can be voluntary.
For the subclass 309 visa there is a pathway via the subclass 445 Dependent Child visa.
The criteria for this visa is based on the applicant being a dependent child which is defined in Reg 1.03 as:
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) …; or
(b) has turned 18 and:
(i) is dependent on that person;
Again ‘Dependent’ is defined in Reg 1.05A, above and there is no requirement to be under 23!
There may be circumstances where it will be necessary to ask Immigration to hold off on the grant of the subclass 100 visa until this subclass 445 visa is determined.
Finally, one last unrelated matter.
Always know where dependents are. If a visa application is to be made by the primary applicant onshore, generally all the dependants also need to be present in Australia at the same time if they wish to be part of that visa application.
Many temporary residents travel in and out of Australia, assuming that Immigration is a benign, friendly, kind and always helpful organisation. It is nothing of the sort.
All travel in and out of Australia by temporary visa holders needs to be carefully planned especially in relation to dependants and clients need to pay for advice in that regard.