1918501 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child who was subject to section 48 of the Migration Act 1958 (Cth). The applicant sought to establish that he was the dependent child of his mother, who had become an Australian citizen after the applicant's last substantive visa application. The delegate had refused the application, finding that the applicant did not meet the requirements of clause 802.211(b) of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine whether the applicant met the requirements of clause 802.211(b), which stipulates that since last applying for a substantive visa, the applicant must have become a dependent child of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen. Specifically, the Tribunal had to consider the impact of the sponsor's change in status from a permanent visa holder to an Australian citizen on the applicant's eligibility.

The Tribunal reasoned that the wording of clause 802.211(b), particularly the repeated use of "or," indicated that the three categories of sponsor status were distinct and not interchangeable. The Tribunal accepted the submission that the decision maker must assess whether the citizenship or visa status of the sponsor had changed since the applicant's last substantive visa application. In this instance, the sponsor became an Australian citizen after the applicant's last substantive visa application. The Tribunal found that the applicant had become the dependent child of an Australian citizen, satisfying the requirement of clause 802.211(b).

Consequently, the Tribunal remitted the application to the Department for reconsideration, with a direction that the applicant met the criteria under clause 802.211 of Schedule 2 to the Regulations.