Sponsoring child & dependent relative – what are the requirement for being a ‘dependent’?
If you are an Australian citizen or PR or an eligible NZ citizen or holds a Subclass 309 visa (click here to learn more) or a Subclass 820 visa (click here to learn more) you may be able to sponsor:
- A dependent child for a Subclass 101 visa (click here to learn more); or
- an aged dependent relative for a Subclass 114 visa (click here to learn more); or
- a dependent child (if you hold a Subclass 309 or Subclass 820 visa) for a Subclass 445 (click here to learn more); or
- a dependent child for a Subclass 802 visa (click here to learn more) or click here on tips on how to obtain Subclass 802 visa; or
- an aged dependent relative for a Subclass 838 visa (click here to learn more).
When sponsoring child & dependent relative, you and/or the visa applicant have to prove they are your dependent. “Dependent” is defined (reg. 1.05A) as:
- a person (the first person or the visa applicant) is dependent on another person if:
- the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person (e.g. the sponsor) for financial support to meet the first person’s basic needs for food, clothing and shelter; and
- 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
- the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
Meaning of dependent when sponsoring child & dependent relative
In Nguyen & Anor v Minister for Immigration & Anor [2020] FCCA 2705, Nguyen sponsored her adopted daughter for a Subclass 101 visa which was refused because the daughter was living with her grandmother and aunt. Nguyen claimed that she has been sending her daughter money. However, her daughter did not pay any rent or contribute toward the household expenses and sometimes eat with her grandmother and aunt.
Nguyen applied to the AAT and the Tribunal said that it has to be satisfied that her daughter is dependent on her and dependence means financial dependence for food, shelter and clothing. And the daughter’s dependence on Nguyen must be greater than her dependence on anyone else. Nguyen said that her daughter uses the money she sent for her tuition, her going out and sometimes for foods and other expenses, but the daughter doesn’t give any money to her grandmother and her aunt.
The Tribunal said that Nguyen’s daughter lives in a house that is owned by the grandmother and aunt, and even if Nguyen or her daughter contribute to household expenses, the daughter is dependence on the grandmother and aunt more than her dependence on Nguyen in term of shelter.
As the daughter sometimes eat with her grandmother and aunt, the Tribunal is not sure if the daughter’s dependence on Nguyen for food is greater than her dependence on the grandmother.
The Tribunal accepted the daughter is Nguyen’s child and was dependent on her at the time of application because she was less than 18. At the time of the AAT’s hearing, she had turned 18, hence the Tribunal was required to consider whether she is dependent on Nguyen.
The Tribunal further accepted that Nguyen transferred money to her daughter; her daughter lives with the grandmother and the aunty; she does not pay for accommodation; she does not contribute toward the household expenses.
Sponsoring child & dependent relative – must be dependent on food, clothing and shelter
The Tribunal affirmed the Department’s decision to refuse Nguyen’s daughter a Child visa as she relies on her grandmother and aunt in Vietnam for shelter and at least partly for food. Nguyen’s evidence does not establish that her daughter is reliant on her for food, shelter and clothing is greater than her reliance on other sources. The Tribunal said that the definition of “dependence” requires dependence on all 3 elements and, for that reason, even if the daughter depended on Nguyen for clothing, but not for food or shelter, the definition of ‘dependence’ would not be met.
Sponsoring child & dependent relative – reliance must be greater on the Sponsor
Nguyen appealed to the FCCA and Manousaridis J said at [27] and [34] that “any other …. source of support” include support provided by the grandmother and aunt collectively in providing financial support for food, clothing and shelter to Nguyen’s daughter. The decision-maker does not need to calculate the proportion of support provided by the grandmother and the portion provided by the aunt when determining whether the daughter’s reliance for financial support on Nguyen was greater than her reliance on the support provided by the grandmother and the aunty.
Sponsoring child & dependent relative – reliance must be in term of financial support
Manousaridis J said at [42] that the daughter’s basis needs for food, clothing and shelter can only be obtained through transactions in which money is exchanged for the food, clothing and shelter.
Living with a relative and not paying for accommodation (shelter) and meals (food) would be counted as financial support from them. Manousaridis J said at [42] that the daughter does not need to pay for her accommodation and meals at her grandmother and aunt’s place is financial support. There is a cost to acquiring shelter; and if a person provides that shelter without expecting any payment, that constitutes financial support for the meeting of the basic need for shelter because the daughter would be relieved of the need to pay for shelter (at [43]).
Nguyen’s application to the FCC was dismissed as the Tribunal did not make any jurisdictional error in arriving that her daughter was not wholly or substantially reliant on her for financial support to meet her basic needs for food, clothing and shelter. The daughter’s reliance on Nguyen was not greater than her reliance on the grandmother and aunt for shelter and food.
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand sponsoring child & dependent relative for a visa or click here to find Australian visas and visa application fees.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
