Cui (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a visa applicant who had turned 18 at the time of application. The review applicant sought to establish that the visa applicant was a dependent child. The Tribunal was required to determine whether the visa applicant met the criteria for being a dependent child of the review applicant at the time of application, and subsequently, whether the visa applicant continued to be a dependent child at the time of the decision.

The central legal issues before the Tribunal were the interpretation and application of the definitions of "dependent child" and "dependent" under the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the visa applicant, having turned 18, was substantially reliant on the review applicant for financial support to meet basic needs, and whether this reliance was greater than any reliance on other sources of support. The Tribunal also needed to consider the criterion relating to the visa applicant studying in a third country, which had not been fully determined.

The Tribunal reasoned that for a person aged 18 or over to be considered a dependent child, they must be substantially reliant on the parent for financial support for basic needs, and this reliance must be greater than reliance on any other source. The Tribunal found that the visa applicant, despite having some income and government subsidies, was substantially reliant on the review applicant for basic needs, and this reliance was greater than any other support. The Tribunal noted that substantial money transfers from the review applicant supported this finding. However, the Tribunal did not make findings on other requirements, such as the visa applicant's study status.

Consequently, the Tribunal remitted the application to the Department for reconsideration. The Tribunal directed that the visa applicant met the criteria under cl.101.211 and cl.101.221(2)(a) of Schedule 2 to the Regulations, leaving the determination of other criteria to the Department.