Phan (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), made by Mr Phan. The dispute centred on whether Mr Phan met the criteria for being a "dependent child" of an Australian citizen or permanent visa holder at the time of his visa application. The decision was made by John Longo, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the visa applicant, Mr Phan, satisfied the definition of a "dependent child" as prescribed by the Migration Regulations 1994. This involved assessing whether he was under 25 years of age, or incapacitated for work, and whether he was in the requisite child-parent relationship, specifically whether he was reliant on his parent for financial support to meet basic needs. The Tribunal also had to consider the validity and authenticity of the documentation provided, particularly Mr Phan's birth certificate, in light of adverse information and inconsistencies.

The Tribunal reasoned that the criterion in cl 101.211 of the Regulations required the applicant to be a dependent child at the time of application. The definition of "dependent child" in reg 1.03 necessitates that the child is not engaged or partnered, and if 18 or older, is reliant on the parent for financial support for basic needs or is incapacitated for work. The Tribunal noted that the applicant's birth certificate, registered significantly after his birth, raised concerns. However, the Registrar of the People's Committee verified the birth certificate's genuineness and explained that earlier records were destroyed by flooding in 1999, which also accounted for the lack of prior registration records. The Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), for reconsideration, directing that the visa applicant meets the criteria set out in cl 101.211 and cl 101.221 of Schedule 2 to the Regulations.