Federal Court (Full Court): the AAT interpreted r 1.05A of the Migration Regulations 1994 (Cth) to provide that a non-citizen could only be "substantially reliant" on a single person in order to be "dependant" on that person. The Appellant argued to the Court that she could be "substantially reliant" both on the primary applicant and on a non-applicant.
Summary and discussion
The Appellant was a secondary applicant for a subclass 187 visa application and needed to satisfy the definition dependent under r 1.05A of the Migration Regulations 1994:
(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...
The Tribunal found that the Appellant was reliant on the primary visa applicant when she spent time in Australia and on another person when she spent time in Vietnam.
The Tribunal also found that it was not possible for the Appellant to be "substantially reliant" on more than one individual and, as a result, affirmed the Department's decision to refuse her a visa.
The Appellant applied to the Federal Circuit Court (FCCA), which dismissed her application. She eventually appealed the FCCA's application to the Federal Court (FCA) and her case was heard by the Full Court (FCAFC).
The question to the FCAFC was whether the terms of r 1.05A(a)(i) implied that Person A can only be a "dependant" of Person B under that provision if Person A is "substantially reliant" on Person B and reliant on no-one else.
The FCAFC unanimously answered as follows...