Nguyen (Migration)

This matter concerned an application for a Business Skills - Business Talent (Migrant) (Class EA) (Subclass 132) visa. The applicant sought to be recognised as a member of the family unit of the primary applicant, his father, Thanh Tung Nguyen. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for inclusion as a member of the family unit, specifically concerning his age and dependency.

The central legal issue before the Tribunal was whether the applicant qualified as a 'member of the family unit' as defined by the Migration Regulations. This required consideration of Regulation 1.12(2)(b)(iii), which stipulates that a child of the family head who has turned 23 years of age must be 'dependent' on the family head or their spouse, as defined by Regulation 1.05A(1)(b). Dependency, in this context, means being wholly or substantially reliant on another person for financial support due to an incapacity for work arising from the total or partial loss of bodily or mental functions.

The Tribunal found that the applicant, born on 27 August 1995, turned 23 on 27 August 2018. While the applicant's representative argued that the applicant was under 23 when the application process began and that processing delays were beyond their control, the Tribunal noted that the relevant criteria must be satisfied at the time a decision is made on the application. The applicant's initial application did not identify any disability preventing him from working. Although the applicant's representative later submitted that the applicant remained financially dependent due to his parents' support and that his ability to obtain work was restricted by the COVID-19 pandemic, the Tribunal also noted evidence of inconsistent information regarding his dependency and incapacity for work. The Tribunal concluded that the applicant did not satisfy the criteria for being a member of the family unit.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 132 visa.