1932045 (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802. The applicant, a nephew of the sponsor's wife, was born in India to biological parents who were related to the sponsor's wife. The dispute centred on whether the applicant met the criteria for being a "dependent child" at the time of the visa application and decision, particularly in the context of a relative adoption.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 802.212(1) of Schedule 2 to the Migration Regulations 1994, which defines a "dependent child" for the purposes of the visa. The Tribunal also considered it appropriate to make findings regarding clause 802.221(1), a time-of-decision criterion, given the circumstances. This involved determining if the applicant was a dependent child of an eligible sponsor and met the age or incapacity requirements.

The Tribunal acknowledged that the sponsor was an Australian citizen at the relevant times. It also noted that the applicant was born in India to biological parents who were the brother and sister-in-law of the sponsor's wife, constituting a "relative adoption." The Tribunal accepted that steps had been taken to facilitate the adoption. Based on the evidence before it, including documentary and oral evidence, the Tribunal concluded that the applicant met the criteria under cl 802.212(1) and cl 802.221(1).

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration by the Minister, with the direction that the applicant met the specified criteria.