Le (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), by a visa applicant who was over 18 years of age. The applicant sought to establish that they were a dependent child of a permanent visa holder. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a dependent child, particularly in light of their age and claims of financial reliance on their father.

The primary legal issues before the Tribunal were whether the visa applicant was a "dependent child" as defined by the Migration Regulations 1994 at the time of application and at the time of the decision, and whether they met the additional criteria applicable to a child who had turned 18. Specifically, the Tribunal had to consider the definition of "dependent child" in regulation 1.03, which requires a child over 18 to be dependent on the parent, either financially for basic needs or due to incapacity for work. The Tribunal also had to apply the principles of dependency as outlined in regulation 1.05A and case law, which focus on actual reliance for financial support.

The Tribunal considered the evidence provided by the applicant, including a statement explaining their circumstances and answers given during an interview. The Tribunal noted that for dependency to be established, there needed to be a factual reliance on the parent for financial support for basic needs, and this reliance must be greater than any reliance on other persons or sources. The Tribunal found that there was no evidence that the applicant was incapacitated for work. While the applicant claimed to have been substantially reliant on their father for financial support for basic needs, the Tribunal's findings, as detailed in the decision, led it to conclude that the matter should be remitted.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration. The Tribunal directed that the visa applicant be considered to meet criteria cl.101.211, cl.101.213, and cl.101.221 of Schedule 2 to the Regulations.