1904681 (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802. The applicant, born in Tonga to an Australian citizen father and a permanent resident mother, was left in the care of relatives in Tonga due to unforeseen circumstances surrounding his birth. He later arrived in Australia as a teenager and a visa application was lodged. However, the applicant was subsequently placed with a family friend who promised to manage the visa application, but this did not occur until after the applicant turned 18.

The central legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 802 Child visa, specifically clauses 802.211 and 802.214, which relate to dependency and educational pursuits. The Tribunal was required to determine if the applicant was dependent on his parents or another sponsor and whether he had been undertaking education since turning 18, as stipulated by the Migration Regulations 1994.

The Tribunal found that the applicant did not satisfy the requirements for the visa. The evidence indicated that the applicant had not turned 18 when the application was lodged, but the circumstances surrounding his care and the actions of a third party, who allegedly provided misleading and predatory behaviour, meant that the applicant's dependency and educational status did not align with the visa criteria. Despite affirming the decision not to grant the visa, the Tribunal recommended that the matter be considered for Ministerial intervention due to the applicant's circumstances.