2002456 (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Child (Migrant) (Class AH) visa, Subclass 101 (Child). The review applicant, the visa applicant's mother and an Australian permanent resident, sponsored the application. The central dispute revolved around whether the visa applicant, who was over 18 years of age at the time of application and decision, met the definition of a "dependent child" under the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was wholly or substantially reliant on the sponsor for financial support to meet basic needs for food, clothing, and shelter, and if this reliance was greater than any other source of support. The applicant had commenced tertiary studies in his home country before seeking refuge due to civil war, and subsequently enrolled in further full-time study in another country. The Tribunal also had to consider whether the applicant was engaged or partnered, and if he had turned 18, whether he was incapacitated for work.

The Tribunal found that the visa applicant was not engaged or partnered and was undertaking a full-time course of study. Crucially, it concluded, based on extensive evidence including money transfer receipts and statutory declarations, that the applicant was substantially reliant on his mother for financial support for his basic needs. While the applicant received some income from a scholarship and government benefits, this was found to be a minority of his funds, with his mother providing the majority of his living expenses. The Tribunal applied the principles from *Huynh v MIMA* [2006] FCAFC 122, focusing on the factual question of whether the applicant was relying on the sponsor for support.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration. The Tribunal directed that the visa applicant met the criteria under cl.101.211(1) and cl.101.221(2) of Schedule 2 to the Regulations, leaving the Minister to consider the remaining criteria for the visa.