Brown (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by a British citizen who was 11 years old at the time of the Tribunal hearing. The applicant had arrived in Australia with his parents in 2010. Following his parents' separation in 2014, the applicant lived with his mother and her new partner. The applicant's mother subsequently lodged a partner visa application including the applicant as a dependent, which was refused. The applicant then became unlawful for a short period before lodging the current application, which was also refused. The Tribunal reviewed the decision under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth).

The central legal issue before the Tribunal was whether the applicant had "become a dependent child" of an Australian citizen or permanent visa holder, as required by cl 802.211(b) of Schedule 2 to the Migration Regulations. This required the Tribunal to interpret the definitions of "dependent child" and "dependent" within the Regulations, particularly in the context of the applicant's living arrangements and the financial support provided by his sponsor, who was an Australian citizen.

The Tribunal reasoned that the intention of the Migration Act and Regulations was not to exclude dependent children based on custody arrangements or living situations. It considered the applicant's biological relationship to the sponsor, the period he lived separately from the sponsor, and the sponsor's financial support as indicated in tax returns. Crucially, the Tribunal found that from February 2017 onwards, the sponsor had been the sole provider of the applicant's material, physical, and emotional needs, establishing a state of dependency. The Tribunal concluded that the correct and preferable decision, considering the entirety of the applicant's circumstances, was to remit the matter for reconsideration, directing that the applicant met the criteria under cll 802.211, 802.212, and 802.221 of Schedule 2 to the Regulations.