Han (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Temporary Business Entry (Class UC) visa, Subclass 457. The applicant sought to be recognised as a ‘dependent’ member of the family unit of the primary visa applicant.

The Tribunal was required to determine whether the applicant, who was 21 years old, met the definition of ‘dependent’ under Regulation 1.05A(1)(a) of the Migration Regulations 1994. This involved assessing whether the applicant was wholly or substantially reliant on the primary visa applicant for financial support to meet basic needs for food, clothing, and shelter, and whether this reliance was greater than reliance on any other person or source of support, for a substantial period immediately preceding the Tribunal's decision. The Tribunal also considered departmental guidelines concerning full-time students and the interpretation of ‘substantial period’ as at least 12 months.

The Tribunal noted that for a person over 18 to be considered a member of the family unit, they must be dependent on the family head. In this case, the applicant was 21, thus falling within the age bracket where dependency, as defined in Regulation 1.05A, needed to be established. The Tribunal referenced the principle from *Huynh v MIMA* that the question of dependency is a factual one, not implying necessity or lack of choice. The Tribunal found that the applicant's circumstances required careful assessment against the criteria in Regulation 1.05A.

Consequently, the Tribunal remitted the applicant’s application for reconsideration by the Minister, with a direction that the applicant meets clause 457.321 of Schedule 2 to the Regulations for a Subclass 457 visa.