Lyu (Migration)

The Administrative Appeals Tribunal considered the case of Lyu, the applicant for a Child (Migrant) (Class AH) visa. The core dispute concerned whether the applicant met the criteria for being a "dependent child" under the Migration Regulations 1994, both at the time of the visa application and at the time of the Tribunal's decision.

The Tribunal was required to determine if the applicant satisfied the requirements of clauses 101.211 and 101.213 of the Migration Regulations. Specifically, this involved assessing whether the applicant was a "dependent child" as defined by regulation 1.03, which includes considerations of age, marital status, partnership, and reliance on parental financial support for basic needs, or incapacitation for work. The Tribunal also had to consider whether these criteria continued to be met at the time of the decision, subject to specific exceptions related to the applicant reaching the age of 18 or 25.

The Tribunal's reasoning focused on the definition of "dependent child" and the test for dependency outlined in regulation 1.05A. This test requires the applicant to be wholly or substantially reliant on the parent for financial support for basic needs, and for this reliance to be greater than any other source of support. The Tribunal noted that dependency is a question of fact, and the mere necessity to provide support is not determinative; rather, the actual reliance of the applicant on the parent is the key consideration, as established in *Huynh v MIMA* [2006] FCAFC 122. After reviewing the evidence, the Tribunal concluded that the criteria for the visa were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Migrant) (Class AH) visa. No claims were advanced in respect of other visa subclasses within Class AH.