1604659 (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 101 (Child) visa. The applicant, Miss Hong, was the subject of the application, and her mother, Ms Zhang, was the sponsor. The dispute arose because the visa delegate refused the application, finding that Miss Hong did not meet certain dependency or study requirements. The Tribunal, presided over by Member Glynis Bartley, was required to determine whether Miss Hong met the criteria for the visa, particularly in light of her age at the time of application and decision.

The primary legal issues before the Tribunal were whether Miss Hong met the criteria outlined in cl.101.211 and cl.101.221(1) of Schedule 2 to the Migration Regulations 1994. This involved assessing whether she was a "dependent child," under 25 years of age or incapacitated for work, and in a relevant child-parent relationship at the time of application and decision. The Tribunal also had to consider whether additional criteria under cl.101.213 applied, which are relevant for applicants over 18.

The Tribunal reasoned that Miss Hong was 17 years old at the time of application and had never been engaged or partnered, thus satisfying the definition of a "dependent child" under r.1.03 of the Regulations. Furthermore, as she was under 25 and not incapacitated for work, she met the age requirement under cl.101.211(1)(b). The Tribunal was satisfied, based on documentary evidence such as Miss Hong's birth certificate, that she was the daughter of Ms Zhang, an Australian permanent resident, thereby fulfilling the child-parent relationship requirement under cl.101.211(1)(c). Crucially, the Tribunal found that the delegate had erred in applying additional criteria for applicants over 18, as Miss Hong was 17 when she lodged her application. Consequently, the Tribunal remitted the application for reconsideration, directing that Miss Hong met the criteria under cl.101.211(1)(a) and cl.101.221(1) of Schedule 2 to the Regulations.