1833271 (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant born in Botswana. The applicant sought to reside in Australia with her father and stepmother, who are Australian citizens. The core of the dispute revolved around the applicant's status as a dependent child of the sponsor, particularly in light of evidence presented regarding their biological relationship and ongoing financial support.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 802 visa, specifically concerning her relationship with the sponsor. This involved assessing whether the applicant was a dependent child of the sponsor, as defined by the relevant regulations, and whether the evidence sufficiently established this relationship, including the nature of their contact and financial support. The Department had raised concerns about the biological relationship after DNA testing indicated the sponsor was not the applicant's biological father, prompting an invitation for the applicant to respond.

The Tribunal reasoned that despite the DNA test results, the matter should be remitted for reconsideration. It directed that the applicant met specific criteria under clauses 802.212, 802.214, and 802.221 of Schedule 2 to the Regulations. This suggests that while the biological fatherhood was questioned, other aspects of the dependency and relationship criteria, such as ongoing financial support and the sponsor's care for the applicant, were considered sufficient to warrant further assessment by the Minister. The Tribunal's decision was to remit the application for reconsideration, rather than making a final determination on the visa itself.