Elbishry (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. The applicant claimed to be a member of the family unit of a person holding a Subclass 444 Special Category visa. The primary issue before the Tribunal was whether the applicant satisfied the criteria under clause 461.212 of the Migration Regulations 1994, specifically concerning the definition of a "member of the family unit."

The Tribunal was required to determine if the applicant, who was over 23 years of age at the time of application and decision, was dependent on the family head due to being incapacitated for work. This incapacity must stem from a total or partial loss of bodily or mental functions. The Tribunal also considered whether the applicant had established a new family unit through marriage, which would preclude them from being a member of their father's family unit for visa purposes.

The Tribunal found that the applicant, aged 27 at the time of application and 34 at the time of the decision, did not provide any medical evidence to support a claim of incapacity for work. While the applicant mentioned a gastric ulcer and Attention Deficit Disorder, their ongoing study and efforts to have medical qualifications recognised in Australia indicated they were not incapacitated. Furthermore, the applicant's admission of marrying an Australian woman in 2017, even if the marriage was not yet legally recognised and they did not cohabit, suggested the formation of a new family unit. The Tribunal concluded that the applicant had not met the requirements of clause 461.212 of the Regulations.

Consequently, the Tribunal affirmed the decision to refuse to grant the applicant a Subclass 461 visa, as they did not meet the criteria for being a member of the family unit.