Nguyen (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Partner (Provisional) (Class UF) visa, subclass 309. The primary dispute concerned whether the applicant, who was over 22 years of age, qualified as a "member of the family unit" for the purposes of the visa application, specifically in relation to the secondary criteria.

The legal issue before the Tribunal was to determine if the applicant met the definition of a "member of the family unit" under regulation 1.12 of the Migration Regulations 1994 at the time of the decision. This involved assessing whether the applicant, as a child of the primary visa applicant, satisfied the conditions for being considered a dependent child, particularly given her age.

The Tribunal reasoned that for a person aged 23 or older to be considered a member of the family unit under regulation 1.12(2)(b)(iii), they must be wholly or substantially reliant on the family head due to an incapacity for work resulting from the loss of bodily or mental functions, as outlined in paragraph 1.05A(1)(b) of the Regulations. In this instance, the applicant was 24 years old at the time of the decision and did not meet this specific criterion for incapacity. Consequently, the Tribunal concluded that the applicant was not a dependent child of the family head and therefore did not meet the secondary criteria.

The Tribunal affirmed the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.