Ng (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of *Ng* concerning an application for a Business Skills (Provisional) (Class EB) visa, Subclass 188. The applicant sought review of a decision to refuse to grant the visa, which had been made by the Department of Home Affairs. The core of the dispute revolved around whether the applicant's adult child met the definition of a "member of the family unit" for the purposes of the visa application, specifically in relation to dependency requirements for individuals aged 23 years or older.

The primary legal issue before the Tribunal was to determine whether the applicant's 23-year-old child was a "dependent" child under the Migration Regulations 1994 (Cth) and associated policy guidelines. This required an assessment of whether the child was in a de facto relationship and, if so, whether that relationship satisfied the criteria for dependency, particularly in light of the applicant's assertion that the child was financially and emotionally reliant on them. The Tribunal also had to consider whether the decision to decline a request for Ministerial intervention, which had been made prior to the AAT review, was reviewable in the context of the visa application itself.

In its reasoning, the Tribunal applied the relevant provisions of the Migration Regulations and the Migration Series Instructions (MSI) pertaining to the definition of a "member of the family unit" and the criteria for dependency for adult children. The Tribunal noted that for a child aged 23 or older to be considered a dependent, they must be in a de facto relationship with the applicant and be financially and/or emotionally reliant on the applicant. The Tribunal found that the evidence provided did not sufficiently establish that the child was in a de facto relationship that met the regulatory requirements for dependency, nor did it demonstrate the requisite level of financial or emotional reliance. Consequently, the Tribunal affirmed the original decision to refuse the visa.