Nguyen (Migration)

The Administrative Appeals Tribunal considered an application for a subclass 445 (Dependent Child) visa made by Phuong, who sought to be recognised as the dependent child of Mr Nguyen, the holder of a partner visa. Mrs Nguyen, an Australian citizen, is married to Mr Nguyen, a Vietnamese citizen. Phuong, born in 1997, was listed as Mr Nguyen's child on her birth certificate. The application for the subclass 445 visa was lodged in November 2016.

The primary legal issue before the Tribunal was whether Phuong met the definition of a "dependent child" as defined by Regulation 1.03 and Regulation 1.05A of the Migration Regulations 1994, both at the time of application and at the time of the decision. Specifically, the Tribunal had to determine if Phuong was wholly or substantially reliant on Mr Nguyen for financial support for her basic needs of food, clothing, and shelter, and if this reliance was greater than any reliance on other persons or sources. The Tribunal also considered whether Phuong was incapacitated for work due to a loss of bodily or mental functions, which would also satisfy the definition of dependent.

The Tribunal's reasoning focused on the definition of "dependent" under Regulation 1.05A, noting that it requires a substantial period of reliance on the sponsor for basic needs. The Tribunal also had regard to the Department's Procedures Advice Manual 3 (PAM3), which clarifies that student fees are not considered basic needs and that adult children undertaking their first major undergraduate qualification may be considered dependent if they are otherwise financially reliant and have been in continuous full-time study since completing high school. In this case, the Tribunal was not satisfied that Phuong met the criteria for dependency under Regulation 1.05A at the time of the decision, nor was there any suggestion of incapacity for work.

Consequently, the Tribunal affirmed the decision to refuse the subclass TK 445 visa, finding that Phuong did not meet the requirements of clause 445.222 of Schedule 2 of the Migration Regulations 1994.