2409879 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who was over 18 at the time of application and over 25 at the time of the decision. The applicant claimed to be incapacitated for work due to the total or partial loss of bodily or mental functions, supported by medical evidence, a statement from their mother, and a letter of support. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria for the visa, specifically concerning dependency and incapacity for work, and whether the study requirement, if applicable, had been considered.

The Tribunal's decision under review was that it had not considered a hearing to be necessary, as it believed it could find in favour of the applicant based on the material before it, pursuant to s 360(2)(a) of the Migration Act 1958. However, the Tribunal ultimately remitted the application for reconsideration. The Tribunal directed that the applicant met the criteria specified in cl 802.212, cl 802.214, and cl 802.221(2) of Schedule 2 to the Migration Regulations 1994.

The Tribunal's reasoning, as indicated by the outcome, was that the applicant's dependency and incapacity for work, as evidenced by the provided documentation, satisfied the relevant regulatory provisions. Specifically, the Tribunal considered the definition of a "dependent child" in reg 1.03, which includes a child who has turned 18 and is either dependent on a person or incapacitated for work due to the total or partial loss of bodily or mental functions. The Tribunal also had regard to reg 1.05A, which outlines the criteria for establishing dependency, including reliance for financial support due to incapacity for work. The Tribunal concluded that the applicant met these criteria, leading to the remittal of the application for further processing with a direction that these specific criteria were satisfied.