Ayol (Migration)

The applicant, a child under 18, sought review of a decision affirming the refusal of her Child (Residence) (Class BT) visa (Subclass 802). The applicant had previously applied for a visa in June 2017, which was refused in August 2019. She had not departed Australia since her initial entry in February 2017 and did not hold a substantive visa at the time of her second application. The Administrative Appeals Tribunal (AAT) was therefore required to determine whether the applicant was subject to section 48 of the Migration Act 1958 (Cth) and, if so, whether she met the criteria for the Subclass 802 visa, specifically clause 802.211(b).

The Tribunal found that the applicant was indeed a person to whom section 48 applied, as she had made a visa application while in Australia, had not departed Australia since her last entry, and did not hold a substantive visa at the time of her second application. Furthermore, the Tribunal determined that the applicant did not meet clause 802.211(b), which requires an applicant to have become a dependent child of an Australian citizen or permanent resident since last applying for a substantive visa. As the applicant was under 18, she was considered a dependent child from birth and had not become a dependent child of an Australian citizen or permanent resident after her previous visa application. The Tribunal also noted the absence of evidence that the applicant could not be cared for by her parents due to their death, unknown whereabouts, or incapacity.

Despite not meeting the visa criteria, the applicant requested that the case be referred to the Minister for consideration under section 351 of the Act, citing compassionate or compelling circumstances. These circumstances included the applicant's young age, her sole dependence on the sponsor, her inability to travel offshore alone, and her mother's current health and emotional state. The applicant argued that these factors affected her best interests and that the requirements of section 48 and Item 1124B should be waived. However, the Tribunal was not satisfied that the applicant met the requirements for the grant of the visa, nor were any claims advanced in respect of other visa subclasses within Class BT. Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.