Huang (Migration)

This matter concerned an appeal by visa applicants against a decision to refuse them Other Family (Migrant) (Class BO) visas, specifically Subclass 115 (Remaining Relative). The primary applicant sought to establish that they were a remaining relative of an Australian citizen, while the secondary applicant, their adult son, claimed to be dependent on the primary applicant and not a "member of the family unit" or a "near relative" as defined by the Migration Regulations 1994. The case was heard by Senior Member Justin Owen of the Administrative Appeals Tribunal.

The central legal issues before the Tribunal were whether the secondary applicant, a 31-year-old son, was a "dependent" of the primary applicant for a "substantial period" prior to the decision, and consequently, whether he qualified as a "member of the family unit" under the Regulations. If the secondary applicant was not found to be dependent, the Tribunal also considered whether he would be classified as a "near relative" of the primary applicant, which would impact the primary applicant's eligibility under regulation 1.15(1)(c) of the Migration Regulations 1994.

The Tribunal's reasoning focused on the evidence presented regarding the secondary applicant's claimed dependency, including his alleged depression and incapacity for study or work following his father's death. However, the Tribunal found inconsistencies and a lack of substantiation in the evidence provided by both the mother and son concerning their financial situation and the son's alleged incapacity. The Tribunal noted the son's voluntary work and some study, alongside a lack of evidence of financial support or professional assessment and treatment for his mental health. Ultimately, the Tribunal concluded that the applicants had not satisfied the criteria for the visa.

The Tribunal affirmed the decision not to grant the visa applicants the Other Family (Migrant) (Class BO) visas.