Tran (Migration)

This matter concerned a review of a decision regarding a Child (Migrant) (Class AH) visa, Subclass 101 (Child) visa. The review applicant sought to establish a mother-daughter relationship with the visa applicant, asserting that she had financially supported the visa applicant through numerous money transfers. The visa applicant, who was over 18 at the time of the application, had completed high school and was studying full-time in Vietnam, living with her father. The decision was made by Susan Trotter, a Member of the Tribunal.

The Tribunal was required to determine several key issues. These included whether the visa applicant was a dependent child of the review applicant at the time of the visa application, and whether the visa applicant met the age and incapacitation criteria for dependency. Further, the Tribunal had to consider if the relevant child-parent relationship existed, and if the additional requirements for applicants over 18, relating to relationships, work, and study, were satisfied at the time of the application. Finally, the Tribunal needed to assess whether the criteria in clauses 101.211 and 101.212 of the Migration Regulations 1994 continued to be met at the time of the decision.

In its consideration, the Tribunal examined the definition of a "dependent child" under regulation 1.03 and the criteria for dependency under regulation 1.05A(1). The Tribunal noted that for non-refugee stream visas, only financial dependency for basic needs (food, clothing, and shelter) is relevant, and this reliance must be greater than any other source of support. The Tribunal also considered the Department's policy guidelines, which clarify that student fees are not considered basic needs and that individual circumstances must be taken into account when assessing financial support, particularly where there is no direct exchange of money.

Ultimately, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration. The Tribunal directed that the visa applicant met the criteria specified in cl.101.211, cl.101.213, and cl.101.221 of Schedule 2 to the Migration Regulations 1994.