Nguyen (Migration)

The Administrative Appeals Tribunal considered whether a visa applicant, aged 23, met the criteria for a Subclass 309 (Partner (Provisional)) visa. The applicant was the child of the primary visa applicant, who had been granted both a Subclass 309 and a Subclass 100 visa. The core dispute revolved around whether the applicant continued to be a "member of the family unit" of the primary visa applicant at the time of the decision, as required by clause 309.321 of the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant satisfied the definition of a "member of the family unit" under regulation 1.12 of the Migration Regulations 1994. Specifically, the Tribunal needed to assess whether the applicant, being over 18 but under 23, was dependent on the primary visa applicant or the review applicant, or if she qualified as a dependent child under paragraph 1.12(2)(c). The Tribunal also had to consider the definition of "child" as provided by section 5CA of the Migration Act 1958.

The Tribunal reasoned that for the applicant to be considered a member of the family unit under regulation 1.12(2)(b)(ii), she must have turned 18 but not 23, and be dependent on the family head. The evidence presented, including a birth certificate and a Form 80, established that the applicant was indeed the child of the primary visa applicant. However, the Tribunal found that the applicant was not wholly or substantially reliant on the primary visa applicant or the review applicant for financial support, as she was incapacitated for work. This lack of financial dependence meant she did not meet the definition of a dependent child under the relevant regulations. Consequently, the Tribunal concluded that the applicant was not a member of the family unit of the primary visa applicant at the time of the decision.

The Tribunal affirmed the decision under review, finding that the visa applicant did not meet the criteria for the Subclass 309 visa.