1915129 (Migration)

The Administrative Appeals Tribunal considered an application for review concerning an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The applicant sought to be recognised as a member of the family unit of the primary visa applicant, who had been granted a Carer visa and was residing in Australia. The core of the dispute revolved around whether the applicant, who continued to live in rented accommodation in Kenya, qualified as a member of the family unit of the primary applicant at the time of the decision.

The Tribunal was required to determine if the applicant met the criteria for being a member of the family unit as defined by Regulation 1.12 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the applicant was a relative of the family head who did not have a spouse or de facto partner, was usually resident in the family head's household, and was dependent on the family head. The definition of "dependent" under Regulation 1.05A(1) was central to this assessment, requiring the applicant to be wholly or substantially reliant on the family head for financial support for basic needs, and for this reliance to be greater than any reliance on any other person or source of support.

The Tribunal reasoned that the applicant met the criteria for being a member of the family unit under Regulation 1.12(1)(e). This conclusion was based on the evidence presented, which indicated that the applicant was more dependent on the primary applicant than on any other source of support for their basic needs. The Tribunal found that the applicant's reliance on the primary applicant for financial support for food, clothing, and shelter was substantial and greater than any other reliance. Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria under clause 116.321 of Schedule 2 to the Regulations.