Tran (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the visa applicant was seeking to establish that she was a dependent child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen. The review applicant, the mother of the visa applicant, had provided evidence of financial transfers to the visa applicant after the visa application was lodged in September 2016. The Tribunal was required to consider whether the visa applicant met the dependent child criteria, specifically concerning financial reliance on the sponsor for a substantial period prior to the application.

The primary legal issue before the Tribunal was whether the visa applicant satisfied the definition of a "dependent child" as defined in regulation 1.03 of the Migration Regulations 1994. This definition requires, for a child aged 18 or over, that they are dependent on the sponsor. Regulation 1.05A further elaborates on dependency, requiring the applicant to be wholly or substantially reliant on the sponsor for financial support to meet basic needs for a substantial period immediately before the time of assessment, and for this reliance to be greater than reliance on any other person or source. The Tribunal also considered the policy that this substantial period is usually taken to be at least twelve months.

The Tribunal noted that the visa applicant's brother had been granted a Child visa, and the review applicant had explained that both children had applied at the same time. While the Tribunal acknowledged the evidence of fund transfers, it specifically sought evidence of the visa applicant's reliance on her mother between October 2015 and September 2016. The Tribunal also addressed allegations made against the review applicant, finding some to be spurious and others unsubstantiated by the evidence. Ultimately, the Tribunal concluded that the visa applicant met several criteria for the Subclass 101 visa.

The Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration. The reconsideration was to proceed with the direction that the visa applicant meets the criteria specified in clauses 101.211, 101.212, 101.213, 101.221(2), and 101.222 of Schedule 2 to the Migration Regulations 1994.