Daknach (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision to refuse a Subclass 836 (Carer) visa. The applicant sought to be recognised as a member of the family unit of the primary applicant, a requirement for this visa subclass.

The central legal issue before the Tribunal was whether the applicant, who was over 23 years of age, satisfied the definition of "member of the family unit" as defined in regulation 1.12 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was wholly or substantially reliant on the primary applicant due to an incapacity for work resulting from the loss of bodily or mental functions.

The Tribunal reasoned that for an applicant over 23 years of age to be considered a member of the family unit under regulation 1.12(2)(b)(iii), they must demonstrate reliance on the family head due to incapacity for work. The delegate's original decision noted the applicant's employment history and university studies, finding no evidence of such incapacity. The applicant's response to a subsequent information request from the Tribunal did not address the criterion of incapacity but instead focused on factors relevant to Ministerial intervention. At the hearing, the applicant conceded that she did not meet this criterion.

Consequently, the Tribunal concluded that the applicant did not satisfy the definition of a member of the family unit as required by the regulations. The decision under review was therefore affirmed.