1600724 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, specifically a Subclass 802 visa. The applicant, Ms. Gonzales, sought to satisfy the criteria for full-time study since turning 18 under cl.802.214 and the dependent child criteria under cl.802.212 of the Migration Regulations 1994. The decision-maker was Wendy Banfield, a Member of the Tribunal.

The core legal issues before the Tribunal were whether Ms. Gonzales qualified as a "dependent child" of an eligible person at the time of her application and decision, and whether she met the full-time study requirements. Specifically, the Tribunal had to determine if Ms. Gonzales, who was over 18, was financially reliant on her mother for her basic needs, and if this reliance was greater than any other source of support, as required by cl.802.212 and r.1.05A. The Tribunal also needed to assess if she was undertaking full-time study.

The Tribunal reasoned that for a person over 18 to be considered a "dependent child," they must be reliant on a parent for financial support for basic needs, and this reliance must be greater than any other source of support. The Tribunal noted that actual necessity for support was not required, but rather the factual reliance on the parent. Applying this to Ms. Gonzales, the Tribunal found that she was indeed dependent on her mother, an Australian citizen, for accommodation, utilities, and food, despite contributing to her own tuition fees and travel costs from a part-time job. The Tribunal was satisfied that her reliance on her mother for these substantial basic needs was greater than her reliance on her own income. The Tribunal also found that Ms. Gonzales was enrolled full-time in hospitality management at TAFE NSW.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria for cl.802.212 and cl.802.214 of Schedule 2 to the Regulations.