Barker (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), made by a visa applicant and sponsored by an Australian citizen. The core of the dispute revolved around whether the visa applicant, who was over 18 at the time of application, met the criteria for being a "dependent child" of the sponsor.

The Tribunal was required to determine if the visa applicant was a "dependent child" of the sponsor at the time of application, as defined by cl.101.211(a) of the Migration Regulations 1994, and whether the applicant met the additional criteria applicable to a child who had turned 18. Specifically, the Tribunal had to assess if the applicant was under 25 years of age, in a relevant child-parent relationship, and if any failure to meet the dependent child criteria at the time of decision was solely due to the applicant having turned 25.

The Tribunal found that the visa applicant was born on 8 March 1994, satisfying the age requirement that the applicant must not have turned 25 at the time of application, and that if the applicant had turned 18, they must continue to satisfy the dependent child criterion and not have turned 25, or if they did not satisfy that criterion, it was only because they had since turned 25. The Tribunal also reviewed the applicant's birth certificate, which recorded the sponsor as the applicant's father, thereby satisfying the child-parent relationship requirement. However, the Tribunal noted that other criteria for the visa remained to be considered.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the criteria under cl.101.211, cl.101.213, and cl.101.221 of Schedule 2 to the Migration Regulations 1994.