Pham (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer), by an applicant who sought to be recognised as a dependent child. The applicant’s eligibility for the visa hinged on whether they met the definition of ‘dependent child’ as stipulated in the Migration Regulations 1994, specifically in relation to Regulations 1.03, 1.12, and 1.05A. The primary applicant, who held or had satisfied the criteria for a Subclass 836 visa, was the family head.

The central legal issue before the Tribunal was to determine if the applicant qualified as a ‘dependent child’ under the relevant regulations. This required an assessment of whether the applicant was a member of the family unit of the primary applicant, considering the definitions of ‘dependent child’ and ‘dependent’ as provided in the Migration Regulations. The Tribunal had to consider the applicant's age, their reliance on the primary applicant for financial support for basic needs, and whether this reliance was substantial and continued for a significant period.

The Tribunal considered the applicant's age, noting they were over 18 at the time of the application. The definition of a dependent child includes those over 18 who are dependent on the primary person. Regulation 1.05A defines ‘dependent’ as being wholly or substantially reliant on another person for financial support for basic needs, with this reliance being greater than reliance on any other person or source. The applicant had relocated and provided payslips indicating employment for a period, and had not declared any financial support from the primary applicant or any other source. The Tribunal found that this evidence demonstrated the applicant's financial independence and a lack of reliance on the primary applicant for their basic needs at the relevant time.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa, as the applicant did not meet the criteria for a dependent child.