Begum (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), by a visa applicant who was over 18 years of age. The review applicant, who was the parent of the visa applicant, provided evidence of financial support to the visa applicant, including remittances for food, clothing, tuition, and medical bills. The visa applicant lived with his grandfather and contributed to household expenses. The Tribunal was required to determine whether the visa applicant met the criteria for a "dependent child" under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the visa applicant qualified as a "dependent child" as defined by regulation 1.03 of the Migration Regulations 1994, particularly in light of the applicant being over 18 years of age. This definition requires that a child aged 18 or older be dependent on the parent for financial support to meet basic needs, or be incapacitated for work. The Tribunal also considered the criteria under clause 101.211 of Schedule 2 to the Regulations, which requires the applicant to be a dependent child, under 25 years of age, and in a relevant child-parent relationship at the time of application.

The Tribunal applied the definition of "dependent child" from regulation 1.03 and the principles from *Huynh v MIMA* [2006] FCAFC 122, which clarified that dependency is a factual question of reliance rather than necessity. The Tribunal accepted the review applicant's evidence of providing financial support through remittances, which were used by the visa applicant for essential living expenses. The Tribunal found that the visa applicant was reliant on the review applicant for financial support to meet basic needs, and that this reliance was greater than any other source of support. Consequently, the Tribunal was satisfied that the visa applicant was a dependent child at the time of application and at the time of decision, and that the criterion under clause 101.211(1)(a) was met. The Tribunal also noted that the visa applicant met the age requirement of not having turned 25 at the time of application.

Given its findings regarding the dependent child criteria, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration by the Minister. The remittal was with the direction that the visa applicant met the criteria under clauses 101.211, 101.213, and 101.221 of Schedule 2 to the Regulations, leaving the remaining criteria to be considered.