Nazari (Migration)

This matter concerned an appeal by the applicant, Nazari, against a decision of the Migration Review Tribunal. The dispute centred on whether the applicant qualified as a "member of the family unit" for the purposes of a Partner (Provisional) (Class UF) visa, specifically a Subclass 309 visa, which had been granted to Ms Masooma Ali. The Tribunal was required to determine if the applicant, claiming to be the son of Ms Ali, met the criteria to be considered a dependent child at the time of the visa application and at the time of the Tribunal's decision.

The core legal issues before the Tribunal were whether the applicant was a "dependent child" of Ms Ali, and by extension, a "member of the family unit" as defined by the Migration Regulations 1994. This required an assessment of the applicant's financial reliance on Ms Ali, considering the definition of "dependent" under regulation 1.05A, which mandates a substantial period of wholly or substantially financial reliance for basic needs, and that this reliance must be greater than any other source of support. The Tribunal also had to consider the applicant's age at the time of the decision, as he had turned 18 and was 24 at the time of the Tribunal's consideration, necessitating an assessment of dependency beyond the typical definition of a child.

The Tribunal reasoned that the definition of "dependent child" under regulation 1.12, as informed by regulation 1.05A, requires a temporal and qualitative assessment of reliance. It noted that while the applicant claimed to study rather than work, there was no evidence of incapacity for work. The Tribunal referred to the Full Court's observation in *Vo v Minister for Home Affairs* that dependency requires a substantial period of reliance and that this reliance must be greater than any other source of support. The Tribunal also acknowledged that "substantial period" has been interpreted as a lengthy period.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This was because the Tribunal needed to make findings on whether the applicant was dependent on Ms Ali at the time of the decision, considering the requirements of regulation 1.05A and the case law, particularly the temporal and qualitative elements of dependency.