1515764 (Migration)

This matter concerned an appeal by a visa applicant, Michael Venus, against the decision not to grant him a Child (Migrant) (Class AH) visa. The applicant's mother, Mrs Timms, who held a permanent resident partner visa, sponsored him. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning his age and dependency status at the time of application.

The primary legal issues before the Tribunal were whether the visa applicant had turned 25 at the time of application, and if so, whether he was wholly or substantially reliant on his sponsor due to being incapacitated for work due to a total or partial loss of bodily or mental functions. The Tribunal considered clause 101.211 of the Migration Regulations 1994, which stipulates that an applicant must not have turned 25 at the time of application, unless an exception applies. The exception relates to applicants who are dependent children incapacitated for work due to loss of bodily or mental functions, as defined in subparagraph (b)(ii) of the definition of "dependent child" in regulation 1.05A.

The Tribunal found that the visa applicant was born in February 1989 and the application was made in August 2014, meaning he had already turned 25 at the time of application. Furthermore, the Tribunal was not satisfied that the applicant was incapacitated for work due to a loss of bodily or mental functions. Evidence indicated that the applicant had completed high school, attended college, and held part-time employment. His mother confirmed he was healthy and not incapacitated, attributing his lack of full-time employment to not wanting to interrupt his studies and waiting for the visa. While financial support was provided by his mother, this was not due to incapacity but rather to cover basic needs and living expenses while he awaited the visa.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the criteria under clause 101.211 of the Migration Regulations 1994 were not met.