1833271 (Migration) - [2021] AATA 5129

1833271 (Migration) [2021] AATA 5129 (11 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1833271

MEMBER:Meena Sripathy
DATE:11 November 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802.212 of Schedule 2 to the Regulations; and
·cl.802.214 of Schedule 2 to the Regulations
·cl.802.221 of Schedule 2 to the Regulations.

Statement made on 11 November 2021 at 2:41pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – biological child of the sponsor – dependent child – full-time studies – money transfers – DNA testing – status of parents not biologically or through adoption – continuing contact and financial support – decision under review remitted
LEGISLATION
Births, Deaths and Marriages Registration Act 1995 (NSW)
Citizenship Act, ss 8, 16
Family Law Act 1975, s 60
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221; rr 1.03, 1.14
CASES
Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130
H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Masson v Parsons [2019] HCA 21; 266 CLR 554
Nakad v MIAC [2013] FMCA 234
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 November 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.212.
The delegate refused to grant the visa on the basis that cl.802.212 was not met because the delegate was not satisfied the applicant was the biological child of the sponsor and therefore she does not meet the definition of child of a person in s5CA of the Migration Act.
The applicant appeared before the Tribunal by video link using the MS Teams platform on 27 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father and sponsor, [named]. The applicant was represented in relation to the review by her registered migration agent, who also participated in the hearing by video link.
The issue in the present case is whether the applicant is a dependent child of the sponsor. The Tribunal also considered the criteria in cl.820.214 and cl. 802.221 relating to study at time of application and decision as these matters arose on the evidence before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information contained in the application form indicates the applicant was born in Botswana in [year]. She is single. She states that her mother is deceased. She provides details of her father and step mother who reside in Australia, a brother in Botswana and [number] (step) siblings in Australia. She was granted a visitor visa on 10 December 2016 and visited from [December] 2016 to [February] 2017, returning [in] August 2017. She provided details of past addresses in South Africa and Botswana. She completed secondary school on [date] in Botswana and attended [a named] College for the [specified course] program [between specified years] and was awarded [two specified qualifications]. At time of application she indicated she was undertaking a [Qualification 1] at [College 1] [in Town 1] from 16 October 2017 due to be completed on 23 November 2018. She is supported financially by her father, who she indicates has financially supported her since birth to the present time, and she presently lives with him and he continues to provide financial support for her education, clothing, food, medical expenses, transport and pocket money.
Included with the application was various supporting documentation including her birth certificate, identification documents for the sponsor and his wife, their marriage certificate, documents evidencing the applicant’s education history and qualifications, death certificate for applicant’s mother and evidence of financial support from sponsor to applicant (and previously applicant’s mother) since 2012.
A cover submission provided with the application states that the applicant, a national of Botswana, was born in [year] and completed her secondary education in [year]. She was enrolled in for [a specified course] [between specified years], and following this, she planned to continue her further [studies]. However, in 2017 her mother passed away and she had nowhere to live to continue her studies. The applicant’s father, concerned for her safety and welfare, decided to bring the applicant to Australia to apply for an onshore Child visa. She is currently enrolled for a [Qualification 1] at [College 1]. The sponsor has financially supported the applicant since birth. Supporting evidence is submitted with the application.
On 16 June 2018 the Department invited the applicant to undertake DNA testing as the birth certificate submitted did not identify a father and the Department was not satisfied the evidence established the claimed relationship between the applicant and sponsor.
On 24 July 2018 the Department received DNA test results which indicated that the sponsor was not the biological father of the applicant. The Department wrote to the applicant on 2 August 2018 inviting comment or respond to this information, which if relied on, may lead the Department to conclude she was not a dependent child of the sponsor as required by the criteria for this visa subclass.
On 28 August 2018 the applicant provided a response to the Department’s invitation to comment. The response submits that the word ‘biological’ does not appear anywhere in Schedule 2 or Schedule 1 requirements applicable to Subclass 802 Child visa provisions. The absence of a biological connection between the applicant and sponsoring father is not therefore relevant. The submission refers to the decision of the AAT in McMullen and Minister for Immigration and Citizenship [2009] AATA 638 in which the absence of a biological connection between an applicant and sponsoring father was tested. In this decision the Tribunal concluded that the applicant’s relationship with her non biological ‘accepted’ father satisfied s16(2)(a) of the Citizenship Act, having regard in that matter to expert evidence from a forensic psychologist that a person who is not a biological parent may assume the role of a parent by virtue of the strength of attachment arising between the child and that other person. The Tribunal in that case observed that the notion of parenthood was flexible and subject to change "as science and the community changes".
The submission explained the reason the sponsor was not identified on the applicant’s birth certificate at the time of her birth was because she was born out of wedlock; and that he has, since birth, supported her financially, emotionally and psychologically by sending money to her biological mother and/or her [Aunt A] to cover all her needs. When her mother passed away in July 2017 the sponsor and his wife, concerned for her welfare, decided it was best for her to join them him Australia. The applicant has established herself and settled into her life in Australia with her family around her. Her studies are paid for by her father and step mother, and she enjoys being with her siblings, father and step mother.
The following supporting documents were included:
·Statutory Declaration by the applicant dated 21 August 2018 – indicating that, as far back as she can remember, her father has lived in Australia. She lived with her father’s sister [Aunt A] on two occasions due to the situation in Botswana and her home life with her mother – from October 2007 to December 2009 and April 2010 to December 2011. Her father tried to apply for a Tourist visa for her to spend 6 months in Australia but it was refused because she was at school. She was granted a holiday visa after she turned 18 and she spent time in Australia with her father , step mother and siblings. She has always been in contact with her father via telephone and he sends money to cover her expenses. Her mother passed away in July 2017 and her father and step mother were concerned for her welfare. She loves being able to spend time with her father, step mother and siblings.
·Statutory Declaration by the sponsor dated 21 August 2018 – describing his relationship with the applicant’s mother and circumstances at the time of her birth. Their de facto relationship continued long distance for a period when he first returned to South Africa and later travelled to Australia for work, before finally ending in December 1999. The applicant lived for two significant periods with his sister in South Africa in 2009-2010 and 2010-2011, during which he visited her from Australia 3 times. He unsuccessfully applied for a Tourist visa for her when she was under 18 years old and still at school. She was granted a Tourist visa after she turned [age] years and spent time with him in December 2016-February 2017. He was named as her father in both these Tourist visa applications. He mentioned her as his daughter in his applications for permanent residence in Australia. He brought her to Australia after her mother died as her and his wife were concerned for her welfare and she had no where else to live. They enrolled her in [College 1] so she could continue with her studies. She lives with them and their children as part of the family. He has provided full emotional, psychological and financial support for her since birth to date. He has always regarded her as his daughter irrespective of the recent evidence that she is not his biological child, which came as a tremendous shock to him. However it does not detract from the fact that she will always be his daughter. A strong and healthy relationship has always prevailed between the applicant and himself despite the absence of a biological connection.
·Affidavit of [Brother A] dated 23 August 2018, brother of the applicant who resides in Botswana. He knows of the sponsor due to his relationship with his mother and as the father of the applicant. He describes his knowledge of their history in Botswana, and later, South Africa. He is aware that the sponsor regularly sent money for the applicant, and the applicant lived for periods with his sister in South Africa and the sponsor visited her from Australia. His mother passed away in July 2017 and the sponsor decided it was best for her to come to Australia as she could not live with him.
·Affidavit of [Aunt A] dated 24 August 2018, sister of the sponsor, residing in Johannesburg, South Africa. She describes her knowledge of the sponsor’s relationship with the applicant’s mother and history of that relationship. She is aware he was present at the birth of the applicant in Botswana. He has sent money for the applicant since he came to Australia. Twice he arranged for the applicant to live with her (the declarant) due to concerns about circumstances in her home life and during these times the sponsor sent her money for the applicant’s needs. After the applicant’s mother’s death the sponsor voiced his concerns for her welfare and decided it best for her to come to Australia to live with them.
·Copy of the decision in McMullen and Minister for Immigration and Citizenship [2009] AATA 638 (27 August 2009)
·Evidence supporting the applicant’s full time status as a student at [the named] College [between specified years].
On 25 October 2018 the application was refused on the basis that the delegate was not satisfied the applicant met the requirement in cl.802.212 because the delegate found the applicant was not the biological child of the sponsor as confirmed by the DNA results and unable to meet the definition of ‘child of a person’ under s5CA of the Migration Act under paragraph (1)(a). The delegate concluded that, despite the evidence submitted to show the applicant always believed the sponsor was her father (and vice versa), there is no scope under s5CA of the Migration Act nor under the Family Law Act for the nature of their relationship to be considered. As the applicant has not been adopted by the sponsor, it remains that she is considered to be the child of her mother and an unidentified father. For these reasons the applicant does not meet the definition of ‘child of a person’ in s5CA and therefore does not meet the definition in r.1.03 of ‘child’ or ‘dependent child’ and does not meet cl.802.212(1).
Tribunal hearing
A summary of the evidence provided at hearing follows. The applicant continues to reside at the same address she has been living at since her arrival, in [Town 1], with her father the sponsor and his wife and her half siblings. She is still single and she is currently enrolled and undertaking [further qualification] at [College 1]. She provided a history of her study activities since the application was made. She was enrolled and undertaking a [Qualification 1] at [College 1] at the time of application, and obtained this qualification in December 2018. She subsequently enrolled in and completed [two further qualifications] in June and December 2019. Following this she had difficulty finding another suitable course at [College 1] during 2020, as there were no face to face classes due to the COVID 19 lockdown and restrictions. She commenced her current course online through [College 1] from February 2021 and is currently undertaking this course which runs for two years. She confirmed that she completed her secondary education in [year] and following this, she studied full time at [the named] College [between specified years] completing a Certificate program. She intends to continue her [professional] studies and achieve her [professional] certification but she may need to get some work experience before that. The Tribunal asked if she has worked since she came to Australia. She said she has only helped out in the family business. She confirmed that she is not contributing financially to her accommodation, and she eats all her meals with the family. All her needs continue to be paid for by her parents.
In Botswana she lived with her mother until she passed away from illness in 2017. The applicant confirmed that before this she came to Australia in December 2016 for a holiday with her father and to meet her half siblings. Her mother was not ill at that time, it was only after she returned from her visit that she became aware of her mother’s illness. Her only other family in Botswana is her older half brother. They share a mother but have different fathers. He has lived separately from them since he was 18 years. He is around [number] years older than her. He currently lives with his partner and [age] year old daughter. The Tribunal asked the applicant what she knows of her brother’s father. She said her mother had her brother when she was around [age] years old and the relationship ended when she was [age]. She believes that her brother did have a relationship with his father but he did not live with them.
Apart from Botswana and Australia the applicant said she also lived in South Africa. She lived with her father’s relatives in her [specified] school years, from around [grade range]. She lived with her [Aunt A], who is her father’s sister, because her mother was out of work. Her [Brother A] went to live with his father’s relatives. The applicant said she had contact with her father by telephone throughout her childhood. She recalls seeing him in person maybe twice in her childhood and then in 2014. When she was a little child she knew he was working in Australia. She saw him in person in 2014 in South Africa. She came to visit him when he was visiting there. Her first visit to Australia was in 2016. She met her half siblings for the first time on that occasion. She previously planned to visit but was not able to because she was under 18 years old and the visa was refused. She is not sure when that was.
The discussion about her coming to live in Australia happened after her mother passed away because she had no one else to live with. She initially stayed with her brother when her mother died, but he had his own family and it was difficult.
The Tribunal asked the applicant about the outcome of the DNA test. She said it came as a shock to her and the sponsor. She said that ever since she can remember she knew the sponsor as her father. He financially supported her throughout her life. The Tribunal asked if her mother had any other partners during her childhood. She said to her knowledge she did not.
The Tribunal asked the applicant about the name [Name]. She said it means “[meaning]” in Zulu language.
Evidence from [sponsor]
The witness confirmed his address. He has lived at this address in [Town 1] for the past 13 years. He lives with his wife and children, including the applicant. The applicant has lived with them since her arrival in Australia in November 2017. The witness stated that he has a [business] in [Town 1] which he has run with his wife for the past 16 years.
He came to Australia in November 1998 to [work]. He stayed in Sydney for about 4 years. Before Australia he lived in Botswana from 1994 for work. In June 1998 he returned to South Africa and from there he moved to Australia.
He met the applicant’s mother, [Ms A], in 1994 or 1995 and they lived together. She had a son at the time who was around [age] years old. The child was living with her mother at the time and then came to live with them around the end of 1995. The witness said he may have met her son’s father once but did not know him. He doesn’t know his name. As far as he can remember [Ms A] did not have contact with him.
The applicant was born in [year]. He was not married to her mother at the time, because he did not have enough money for the dowry. He agreed with [Ms A] that he would not be named on the birth certificate. The representative interjected at this time to indicate that the legal practice in [that country] at that time stated that unmarried fathers had no rights over the child, which is consistent with him not being named on the birth certificate. The Tribunal asked if this is the case, is he aware of whether the applicant’s brother’s birth certificate similarly omits reference to a father. The representative undertook to make enquiries and provide this evidence if available.
The Tribunal asked the witness why he left Botswana in 1998. He said he had no job so he returned to South Africa. They were still in a relationship at that time. When asked why [Ms A] and the applicant did not come with him to South Africa, he said his financial situation was not good at the time, and because they were not married she could not come. He went back and forth to Botswana to visit them.
When he went to Australia initially he did not know anything about this country. He returned to Johannesburg in 2000 and they came to see him. At this stage he was still thinking about returning to Africa. The relationship with [Ms A] was still on at this stage. He next returned in 2001. By this time he had met [Ms B], his current wife. In this visit he ended the relationship with [Ms A]. He had been sending them money throughout this time. They discussed that he would remain in touch with the applicant as her father and continue to provide financial support. He has evidence of sending money to Botswana.

The Tribunal asked about when the applicant went to live in South Africa with his sister. He confirmed that she went to stay with his sister in 2007 because things were difficult for [Ms A] financially.
The next time he saw the applicant was in 2014. He went to South Africa for 2 weeks and the applicant visited from Botswana. When asked why his visit was so short, he said he had work commitments here. Apart from that trip he has only been outside Australia once, to [Country 1] for a family holiday. During the visit in 2014 with the applicant he promised to bring her to Australia for a visit. They had tried earlier for a visit but it was refused because she was under 18 years old. He can’t recall when exactly it was, but recalls that they lost money on the ticket because the visa was not granted. The Tribunal asked him why, in his statutory declaration, it refers to him seeing the applicant on two occasions when she stayed in South Africa with his sister. He said that is not correct.
The Tribunal asked about the name [name]. He confirmed it is the applicant’s name in Zulu and he may have used that name for her in his applications. The Tribunal asked who [name] is, as she is mentioned in his past visa applications. He said she is his late mother.
The Tribunal asked the witness about his knowledge of the applicant’s education. He was aware of her school and the [course] she did after that. They kept in contact via telephone between 2001 and 2015. The Tribunal asked if he has any photos of her in childhood. He said he may have and can have a look.
The Tribunal asked the witness about his reaction to the DNA results. He said it came as a total shock to him. After the initial shock of it, however, he realised it does not change his relationship with the applicant. She has always been and still is his daughter. The same goes for his wife. They have always considered her his daughter and they will continue to despite this. The Tribunal observed the witness was visibly emotional and teary as he spoke about this. He wants her to be able to stay here with them.
The Tribunal asked the witness when he learned about the illness of the applicant’s mother. He said he only came to know about one month before she died. The applicant was living with her when she passed away. They then had to make a decision about where she should go. He decided she had to come here because Botswana is not a safe place for her as a young woman alone.
At the end of the hearing the representative addressed the Tribunal about his experience conveying the news of the DNA outcome to the witness over the telephone. He explained the context to this, being his own previous experience in [a specified region] as [an occupation]. He also has experience with African people from his own childhood in South Africa, in an area where the witness is from. Because of this background he is familiar with expressions of emotions of people of a similar tribal background to the witness. The representative told the Tribunal in his view the witness’ reaction to this news was one of genuine, credible and very authentic shock. He described the change in his breathing and voice was entirely consistent with a person hearing shocking and profound news for the first time. The representative can therefore state with conviction that this information came as an absolute shock to him. After he processed the information however, he expressed very clearly to him that everything and nothing has changed. She is still his daughter. He was shocked but he suffered no loss. The outcome remains the same. She remains his daughter. The representative then counselled him about conveying the information to the applicant.
The representative requested a further one week to submit supporting documents arising from the evidence.
On 5 November 2021 the Tribunal received a submission and attached supporting documents including
·Evidence of the applicant’s education qualifications, and further explanation of her study history.
·Evidence of current enrolment in [further qualification], commencing 28 February 2021 and due to end on 28 February 2023.
·Birth certificate of [Brother A], half brother of the applicant, which also makes no reference to his father.
·Document entitled Right of Unmarried Natural Fathers to be Recognised on Birth Certificates and judgment of High Court of South Africa in L & H Director General Home Affairs relating to the issue of an unmarried father’s right to have his name reflected on the birth certificate.
·Copies of financial transfers from sponsor and his wife to applicant from 2012 to 2021.
·A photo of the applicant as a small child, carried by the sponsor in his wallet to date.
·Email correspondence between the sponsor’s wife and applicant’s late mother relating to making an application for a visitor visa for her in 2009.
·Copies of judgements relating to consideration of the definitions of child, including Nakad v MIAC and McMullen and Minister for Immigration and Citizenship; Chau decision and AAT Legal commentary materials
Dependent child criteria
The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).
Section 5(1) provides that a ‘child’ of a person has a meaning affected by s 5CA.
Section 5CA provides:
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a)      someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b)      someone who is an adopted child of the person within the meaning of this Act.
(2)      The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3)      Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
In the Tribunal’s view, s 5CA does not exhaustively describe who can be considered as a ‘child’ of a person,[1] however it links the meaning of ‘child of a person’ under the Act to the meaning of ‘child of the person’ in the Family Law Act 1975 (Cth) (Family Law Act). The Tribunal observes that the Family Law Act also does not precisely define who is a ‘child’, the relationships that are child-parent relationships, or the concept of a ‘child of a person’. Notably, it provides for situations where biological fathers are not parents and for people who may have the status of parents even were they are not biologically or through adoption related to a child by operation of s 60H of the Family Law Act, though generally a child-parent relationship under that Act refers to the relationships between a child and each of his or her biological parents.
[1] See for example obiter comments of Emmet FM in Nakad v MIAC [2013] FMCA 234
The Tribunal accepts that given the link in s 5CA(1)(a) of the Act to the Family Law Act, a ‘child of a person’ under the migration law clearly includes a biological child of a person. The issue arising in this case is whether it is limited to only recognise biological connection or whether it also permits consideration of circumstances where there is no biological connection between the child and the putative parent.
Section 5CA(2) provides for persons to be prescribed in the Regulations as not being a ‘child of a person’ for migration law purposes. This provision is enlivened in r.1.14A (Parent and Child) and specifically refers to where a child is adopted -the child is taken to be the child of the adoptive parent or parents and taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption). The Tribunal considers this is not relevant in the present case as there is no issue of adoption.
The Tribunal has also considered relevant recent judicial authorities that have considered statutory definitions of ‘parent’ and found that they are not ordinarily limited to biological parents. In a recent Full Federal Court decision in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 which involved a cancellation under s109 of the Migration Act, the Full Court considered the concept of ‘parent’ in the Births, Deaths and Marriages Registration Act 1995 (NSW). The court noted that the concept of “parent” is undefined in the BDMR Act and observed,
As decisions both in Australia and the United Kingdom demonstrate, statutory definitions of the term “parent” are not ordinarily limited to a biological parent (Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [47]-[49] per Moore, Kenny and Tracey JJ; In re G (Children) [2006] UKHL 43; 4 All ER 241at [33]-[37] per Hale LJ). Referring to Baroness Hale of Richmond’s observations Inre G (Children), the plurality in Masson stated at [29] as to the meaning of “parent” under Div 2 of Pt VII of the Family Law Act 1975 (Cth):
… according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.
Similar remarks were made by the Full Court in H v Minister, which concerned two appeals which raised the issue of whether “parent” in s 16(2) of the Australian Citizenship Act 2007 (Cth) was confined to “biological parent”. As to the ordinary meaning of the word “parent”, the Full Court remarked at [48]:
While often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.
At [130], the Full Court made the following observations concerning the AAT’s statutory task under the Australian Citizenship Act:
The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge (emphasis added).
With these observations in mind (while also being mindful of the dangers of transposing the construction given to a particular term in different statutory contexts), it is apt to note immediately that there is nothing in the terms, context or purpose of the BDMR Act which suggests that the meaning of parent is confined to “biological parent”.[2]
[2] Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 at [95]- [98]
At [104] Griffiths and Abraham JJ stated
As the authorities make clear, both the meaning of the ordinary meaning of the word “parent”, and whether a person qualifies as a “parent” are questions which fall to be determined in the “circumstances of the particular case” (Masson at [29]; In re G (Children) at [33] per Hale LJ; H v Minister at [130] per Moore, Kenny and Tracey JJ). The categories of cases in which a person may be held to be a parent are not closed, nor could they be, given the continuing evolution of the concepts of parents and families in Australia’s modern society.
The Tribunal notes that the judgement in H v Minister for Immigration and Citizenship [2010] FCAFC 119 referred to above, is the Minister’s appeal to the Federal Court of the decision of the AAT in Vanessa McMullen and Minister for Immigration and Citizenship [2009] AATA 638 mentioned in the applicant’s representative’s submissions. In addition to the passages cited above, the Tribunal notes the following at [129]:
Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.
Taking into account the discussions in the authorities cited above that considered the meaning of ‘parent’ in other legislative contexts, and the provisions of the legislation relevant to this matter extracted above, the Tribunal is of the view that s 5CA does not provide an exhaustive, definitive definition of who can be considered a ‘child of a person’. A plain reading of the opening words ‘without limiting who is a child of a person’ makes that clear. As a corollary, the Tribunal is of the view, unlike the delegate, that the fact the applicant is not the biological child of the sponsor, of itself, does not preclude her from being the child of the sponsor. The question of whether she is the child of this person is a question of fact for the Tribunal.
Applying principles and observations from the authorities cited above to the facts and circumstances of the present case, the Tribunal makes the following findings. It accepts that the sponsor was in a de facto relationship with the applicant’s mother at the time of her birth. It also accepts on the evidence before it, that the sponsor and applicant’s mother remained in a relationship for some years after her birth, although the relationship continued by distance when he first returned to South Africa in 1998 and then travelled to Australia later that year. It accepts, on the sponsor Statutory Declaration and oral evidence, that he was present at the birth of the applicant, and always considered and treated her as his child. The evidence of continuing contact, financial support, the applicant’s extended periods of residence with the sponsor’s sister in South Africa during her primary school years, and his attempt to bring her to Australia on a visitor visa in 2009 and her subsequent travel here on a visitor visa in 2016 all support and are consistent with these findings.
The Tribunal accepts the applicant and sponsor willingly accepted and underwent DNA testing upon invitation by the Department because they had no idea that it would not confirm the relationship between them. The result came as a complete shock to both of them. The Tribunal took evidence from each of them about this and accepts on the basis of their authentic and credible responses that this news was unexpected and came as a shock. It also accepts that, after digesting it, it did not change the relationship between them. The sponsor clearly told the Tribunal that the applicant was always his daughter and continues to be his daughter and nothing has changed that. The applicant told the Tribunal she has always known him as her father, he has supported her financially throughout her life, she has lived with him and his wife and children since coming to Australia to date and continues to live with them as a member of the family to date.
There is no evidence of any other identified person who is the biological father of the applicant, or any evidence of any other person who has a child-parent relationship with the applicant remotely as close as that between the applicant and sponsor.
Therefore, the Tribunal finds the child parent relationship between the applicant and sponsor commenced from her birth and has continued to this date. The sponsor was in a relationship with the applicant’s mother at the time of her birth, was present at her birth and from that time accepted and treated her as his daughter. There is no other evidence before the Tribunal of any other person who the applicant has had a child-father relationship with. The relatively new evidence of the DNA results did not and has not changed the longstanding parent child relationship between them.
For these reasons, the Tribunal concludes the applicant is the child of the sponsor, who is an Australian citizen.
Dependent child
At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].
The applicant was over 18 years old at time of application. The evidence supports that she was and continues to date to be, fully reliant on the sponsor for financial support for her basic needs. She was, and continues to date, to live in the sponsor’s home, and he provides for her food and daily living expenses. Apart from helping out in the family business, she has not worked since coming to Australia.
Accordingly, the Tribunal is satisfied on the evidence before it, that cl.802.212(1)(a) is met at the time of application, and continues to be met at the time of decision.
Applicant under 25 or incapacitated for work

At the time of application, the applicant must not have turned 25, unless they are incapacitated for work due to the total or partial loss of bodily or mental functions: cl.802.212(1)(b), (2).
The applicant was 21 years old at time of application and was therefore under 25. Accordingly, cl.802.212(1)(b) is met at the time of application. At time of decision, the applicant has turned 25, and therefore she does not have to be dependent on the sponsor.
For the reasons above, the criteria in cl.802.212 and cl.802.221(2)(a) are met.
Criteria for applicants over 18
If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).
Relationship status
At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a). This must continue to be the case at the time of this decision: cl.802.221(2)(b).
The Tribunal claimed in the application that she has never married or been in a de facto relationship. She confirmed she remains single now in her oral evidence to the Tribunal at hearing.
Accordingly, cl.802.214(1)(a) is met at time of application and continues to be met at the time of decision.
Not engaged in full-time work
At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b). This must continue to be the case at the time of this decision: cl.802.221(2)(b).
The applicant declared in the application that she was not employed, and was financially supported by her father, the sponsor. She confirmed at hearing that she continues to reside with and be fully financially supported by the sponsor. She told the Tribunal she is not and has never worked apart from helping out in the family business. The applicant provided copies of her banks statements to date which substantially supports these claims.
Accordingly, cl.802.214(1)(b) is met. On the evidence before it, the Tribunal is satisfied it continues to be met at time of decision.
Full-time study (or incapacitated for work)
At the time of application, the applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.802.214(1)(c).
The Tribunal accepts, at time of application, the applicant was undertaking a [Qualification 1] through [College 1] [in Town 1], having commenced the course in October 2017. Prior to this, she had completed [school] in [year], after she had turned 18 years. She then undertook and completed full time studies obtaining a [specified qualification] from [the named] College. The Tribunal is satisfied that she met cl.802.214(1)(c) at time of application.
Since then she has continued her studies, completing her [Qualification 1] and [two further qualifications] in 2018 and 2019. Her studies were disrupted during COVID 19 due to closures of the [College 1] campus in [Town 1]. She re-commenced study in February 2021 in [a further qualification] and is currently undertaking this course. Evidence of her enrolment, transcripts and qualifications were provided to the Tribunal.
Clause 802.221(2)(b) requires that at the time of decision, the applicant ‘continues to satisfy’ the study requirement set out in the relevant time of application criteria. Considering an identical provision in the offshore Child visa subclass, 101, the Court in Hussain v MIBP, held that the phrase ‘has, since turning 18… been undertaking’ in cl 101.213(1)(c), both in itself and read with the requirement in cl 101.221(2)(b) that a visa applicant ‘continues to satisfy’, requires the decision-maker, when considering the criteria at the time of decision, to look at the time period from the visa applicant commencing study within cl 101.213(1)(c) until the time of the decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. This involves examining what the visa applicant had been doing in that interval, including the length of, nature of, and explanation for any gap in study, and regard should also be had to the fact that the nature of study is intermittent.[3]
[3] Hussain v MIBP [2017] FCCA 3247 at [111] and [114].
In the present case, the Tribunal is satisfied that the applicant was undertaking relevant study at time of application. It has considered her activities since the commencement of her study up until the time of decision and is satisfied, having regard to the completion of relevant courses, and explanation for the break in study in 2020, and current enrolment and study, that she has been and continues to be undertaking relevant study. The Tribunal is satisfied that the applicant continues to meet cl. 802.214 at time of decision.
The applicant therefore meets the requirements of cl.802.221.
Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802.212 of Schedule 2 to the Regulations; and
·cl.802.214 of Schedule 2 to the Regulations; and
·cl.802.221 of Schedule 2 to the Regulations.
Meena Sripathy
Member