Nguyen (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 188 Business Innovation and Investment (Provisional) visa. The primary applicant was Mr Trung Dung Nguyen, and the individuals seeking to be recognised as members of his family unit were Mr Chi Hieu Nguyen and Mr Chinh Trung Nguyen, identified as his children. The core dispute revolved around whether these individuals met the criteria to be considered members of the family unit for the purposes of the visa application.

The Tribunal was required to determine whether Mr Chi Hieu Nguyen and Mr Chinh Trung Nguyen satisfied the definition of "member of the family unit" as provided by the Migration Regulations 1994, specifically in relation to the dependency requirements for adult children. This involved interpreting Regulation 1.12(2), which outlines the conditions under which a child, particularly one over 18 years of age, can be considered a member of the family unit of the primary applicant.

The Tribunal's reasoning focused on the dependency criteria stipulated in Regulation 1.12(2)(b). For applicants aged 23 or older, the regulation requires them to be "wholly or substantially reliant" on the family head due to being incapacitated for work due to loss of bodily or mental functions, as defined by Regulation 1.05A(1)(b). The Tribunal noted a lack of evidence regarding the current circumstances of the applicants and whether they met this specific incapacity and reliance threshold. Consequently, the Tribunal affirmed the decision not to grant the visa.