1609401 (Migration)

This matter concerned an application for an Extended Eligibility (Temporary)(Class TK) Subclass 445 (Dependent Child) visa. The applicant, a child, was seeking to demonstrate that he was a dependent child of Ms Lai, who held a Subclass 820 visa. The central dispute revolved around whether the applicant met the definition of "dependent child" as defined in the Migration Regulations, specifically concerning his reliance on Ms Lai for financial support.

The Tribunal was required to determine whether the visa applicant was a dependent child of Ms Lai at the time of application and continued to be so at the time of decision. This involved assessing whether the applicant was "wholly or substantially" reliant on Ms Lai for a substantial period immediately prior to the consideration, and whether this reliance was greater than on any other person or source of financial support for basic needs such as food, shelter, and clothing.

The Tribunal applied the definition of "dependent" as set out in regulation 1.05A(1) of the Migration Regulations, informed by the Full Federal Court's decision in *Huynh v MIMIA* [2006] FCAFC 122. This precedent established that the assessment should focus on the factual reality of reliance rather than any perceived necessity for providing support. The Tribunal accepted evidence that the applicant was the son of Ms Lai, that Ms Lai held a Subclass 820 visa, and that the applicant was sponsored by the same sponsor as Ms Lai. Crucially, the Tribunal found that the applicant was substantially reliant on Ms Lai for his basic needs, and this reliance was greater than on any other source.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the visa applicant met the requirements of clauses 445.211, 445.221, and 445.222 of Schedule 2 to the Regulations.