Su (Migration)

This matter concerned an appeal by the applicant, Mr. Su, against a decision not to grant him an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. Mr. Su was a secondary applicant, seeking to join his mother, the primary applicant. The dispute centred on whether Mr. Su qualified as a member of his mother's family unit for the purposes of the visa application.

The primary legal issue before the Tribunal was to determine if the applicant, aged 27, met the dependency requirements stipulated in clause 836.321 of the Migration Regulations 1994, as a child of the primary applicant. Specifically, the Tribunal had to consider the definition of "member of the family unit" as provided in regulation 1.12, and the criteria for dependency for a child over 23 years of age.

The Tribunal reasoned that for a person aged 23 or older to be considered a member of the family unit, they must be "wholly or substantially reliant on the family head or their partner for financial support because they are incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions." The applicant, being 27 years old, did not claim or provide evidence of any incapacity for work due to loss of bodily or mental functions. Consequently, the Tribunal concluded that the applicant did not meet the dependency requirements under regulation 1.05A(1)(b).

As the applicant failed to satisfy the dependency criteria for a child over 23, the Tribunal found that he was not a dependent child of the primary applicant and therefore did not meet the requirements of clause 836.321. Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.