1928559 (Migration)

The applicant, who was over 18 at the time of application, sought a Child (Residence) (Class BT) visa, Subclass 802. The core dispute concerned whether the applicant qualified as a "dependent child" under regulation 1.03(b)(ii) of the Migration Regulations 1994, specifically by demonstrating incapacitation for work due to the loss of bodily or mental functions, and consequently satisfying clause 802.214(2) by being reliant on the sponsoring parent for financial support. The applicant's circumstances involved significant mental health challenges, including borderline personality and major depressive disorders, leading to an inability to work or study full-time. This was compounded by drug use, criminal offences, and a period of intensive correction and mental health treatment. The applicant's father, the sponsor, and his step-family reside in Australia and provide support, while the applicant's mother lives in a third country and is unable or unwilling to offer assistance. Minimal support was available in the applicant's home country.

The Tribunal was required to determine if the applicant's claimed incapacitation for work due to mental health issues was sufficiently established to meet the definition of a dependent child. This involved assessing the evidence presented, including medical, psychological, and corrective services reports, alongside statutory declarations from the applicant, his father, and his former stepmother. The Tribunal also considered the applicant's limited part-time work and study history, his relationships, and the stability and support offered by his sponsor and step-family in Australia, contrasted with the lack of support in his home country and from his mother.

The Tribunal reasoned that the applicant's extensive documented mental health issues, supported by various expert reports and personal statements, indicated a significant loss of mental functions rendering him incapacitated for work. The Tribunal acknowledged the applicant's struggles with mental health and substance abuse, his engagement with treatment and restorative justice processes, and the lack of viable support structures in his home country. Crucially, the Tribunal found that the applicant's father and step-family in Australia provided a stable and supportive environment, which was essential for the applicant's well-being and potential recovery. The Tribunal concluded that the applicant met the criteria for being a dependent child due to his incapacitation for work.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration. The remittal was directed with the finding that the applicant meets the criteria under clause 802.214 of Schedule 2 to the Regulations and clause 802.221(2)(b) of Schedule 2 to the Regulations.