Nguyen (Migration)

This matter concerned an appeal by a review applicant against a decision of the Migration Review Tribunal (MRT) which affirmed a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 101 (Child). The core of the dispute revolved around whether the visa applicant, an adult dependent child, was financially reliant on the review applicant (the sponsor) to a sufficient degree to meet the visa requirements.

The legal issues before the court were whether the visa applicant was financially dependent on the sponsor, and whether she met the study requirements for the visa. Specifically, the court had to determine if the evidence presented established that the visa applicant relied on the sponsor for financial support, and if there were any unacceptable gaps in her full-time study history, considering her participation in English language courses, part-time studies, and training positions.

The court considered the principle that dependency does not require absolute necessity but rather a factual reliance on support. The evidence presented included a rental contract suggesting the sponsor leased a property to the visa applicant's father, with rental income purportedly provided to the visa applicant's mother for the applicant's support. However, the visa applicant herself was unaware of the financial details and stated her mother provided her with funds. The sponsor later claimed his rental income was deposited into the mother's account to cover the applicant's costs, especially after the mother's retirement. The delegate found inconsistencies in the evidence regarding the source and receipt of rental income, the mother's employment status, and the nature of the financial support provided. The delegate concluded there was no compelling evidence that the property was rented or that the rental income was provided to the mother for the applicant's support, and therefore was not satisfied the applicant was dependent on the sponsor.