1925555 (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. The applicant sought to rely on the dependent child criteria under cl.101.211 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a dependent child, specifically whether he had turned 25 at the time of application or was incapacitated for work. The Tribunal was required to consider the applicant's date of birth, the date of the visa application, and evidence relating to his mental health and studies.

The Tribunal found that the visa applicant had turned 25 prior to the application date, thus failing the age requirement under cl.101.211(1)(b). While accepting the applicant suffered from dependent personality disorder, anxiety, and depression, and had experienced mental health issues stemming from his dependence on his mother and periods of separation, the Tribunal was not satisfied that these conditions rendered him incapacitated for work to the extent required by cl.101.211(2). The Tribunal noted the applicant was studying a degree full-time and had maintained steady involvement and passed required subjects.

Despite affirming the decision not to grant the visa, the Tribunal considered that the circumstances warranted a recommendation to the Minister for consideration of the exercise of powers under s.351 of the Migration Act 1958. This recommendation was based on the applicant's seven years of study in Australia, his mistaken exclusion from his mother's permanent visa application, his return to Bangladesh to reunite with his mother shortly before her visa grant, and his ongoing mental health challenges and commitment to study.