Tay (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking to be recognised as a member of the family unit of the primary visa applicant, his father, for the purposes of a Business Skills - Business Talent (Permanent) visa (subclass 132). The applicant, who was over 23 years old, claimed dependency on his father.

The central legal issue before the Tribunal was whether the applicant met the definition of a "member of the family unit" as defined in regulation 1.12 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant, being over 23 years of age, was "wholly or substantially reliant" on the family head for financial support due to being incapacitated for work due to the total or partial loss of bodily or mental functions, as stipulated in regulation 1.12(2)(b)(iii) and regulation 1.05A(1)(b).

The Tribunal reasoned that for an applicant over 23 years old to be considered a member of the family unit, they must demonstrate incapacity for work due to a loss of bodily or mental functions, leading to their substantial reliance on the family head for financial support. The applicant had provided evidence of his enrolment in a Master's degree program and payment of professional membership fees, but these did not establish the required incapacity for work. The Tribunal concluded that the provided evidence did not satisfy the stringent dependency requirements of the regulations for an applicant in this age bracket.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Business Skills - Business Talent (Permanent) visa. The Tribunal noted that it would be open for the applicant to make a direct request to the Minister following this decision.