Chen (Migration)

This matter concerned an appeal by the applicant, Chen, regarding a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 101. The visa applicant, the child of the review applicant, was over 18 years of age at the time of the application and the subsequent decision. The core of the dispute revolved around whether the child met the criteria for being a "dependent child" under the Migration Regulations 1994, particularly concerning financial support and full-time study. The case was heard by a delegate of the Tribunal.

The Tribunal was required to determine whether the visa applicant met the criteria for a dependent child as defined by the Regulations, specifically whether they were reliant on the review applicant for financial support and whether they were undertaking full-time study. The Tribunal also needed to consider the specific requirements for applicants over 18, including their relationship status, whether they were engaged in full-time work, and if they were undertaking a full-time course of study since turning 18 or within a reasonable time after completing secondary education. The Tribunal had to assess these criteria as they applied at the time of the application and at the time of the decision.

The Tribunal reasoned that the visa applicant was the son of the review applicant and was 23 years old at the time of application, with the review applicant being an Australian permanent resident. The Tribunal was satisfied that the visa applicant was not engaged and did not have a spouse or partner at the time of application, and had never been engaged in full-time work. Crucially, the Tribunal found that the visa applicant met the criteria for being a dependent child, even though they had turned 25 by the time of the decision, as the Regulations allow for this if the applicant turned 18 or 25 during the process. The Tribunal also considered the applicant's study status, noting that the applicant's study at an open university was considered full-time and that financial difficulties had delayed their studies for a year.

Ultimately, the Tribunal concluded that the visa applicant met the criteria under cl 101.211 and cl 101.221(2)(a) of the Regulations. However, due to the complexities surrounding the applicant's study progression and financial support, the Tribunal remitted the decision for reconsideration.