Brown (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by a 13-year-old British citizen. The applicant had arrived in Australia in 2010 with her parents. Following her parents' separation in 2014, she lived with her mother and her mother's new partner. The applicant's mother subsequently lodged a partner visa application including the applicant as a dependent, which was refused. The applicant then lodged the current visa application, which was also refused. The review of this refusal was heard by Ann Duffield, Senior Member, of the Tribunal.

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 clause 802.211(b)(i) of the Migration Regulations 1994, given that section 48 of the Migration Act 1958 applied to her. This required the Tribunal to interpret the definitions of "dependent child" and "dependent" within the Migration Act and Regulations, particularly in the context of the applicant's living arrangements and the sponsor's financial support.

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 found that while the applicant had lived separately from the sponsor for a period, and her mother had since departed Australia, the sponsor had provided financial support to the applicant, as indicated by his tax returns. Crucially, from February 2017 onwards, the sponsor had been the sole provider of the applicant's material, physical, and emotional needs, and had lived with her as a family unit. The Tribunal accepted that this support stemmed from a moral obligation, but found that the level of support provided meant the applicant had become wholly or substantially dependent on the sponsor for financial support to meet her basic needs.

Consequently, the Tribunal concluded that the correct and preferable decision was to remit the matter for reconsideration. The Tribunal directed that the applicant met the criteria for a Subclass 802 visa under clauses 802.211, 802.212, and 802.221 of Schedule 2 to the Regulations.