Carter (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, brought by Ms. Carter. The applicant, born in 1997, sought to establish that she was a "dependent child" of her mother, an Australian permanent resident. The primary dispute revolved around whether Ms. Carter met the criteria for dependency as defined by the Migration Regulations 1994, particularly given her age and employment history. The decision was made by Steven Griffiths, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for a Child 802 visa, specifically whether she qualified as a "dependent child" of her sponsor at the time of the visa application and at the time of the decision. This required determining if she was under 25 years of age or incapacitated for work, and if she had turned 18, whether she was reliant on her sponsor for financial support for basic needs, or incapacitated for work. The Tribunal also considered whether the applicant had worked since 2020, a point that could not be definitively determined.

The Tribunal reasoned that for the applicant to be considered a "dependent child" under regulation 1.03 and 1.05A, she needed to be reliant on her sponsor for financial support for basic needs. While the sponsor provided accommodation, the Tribunal noted that the applicant was over 21 years and 9 months old at the time of the application and had worked from April 2018 to October 2018. Crucially, the applicant had not provided any further information to the Department of Home Affairs or the Tribunal since the initial decision in January 2020, which prevented a determination of her current reliance on her sponsor or whether she had worked since 2020. The Tribunal applied the principles from *Huynh v MIMA* [2006] FCAFC 122, focusing on whether the applicant was, as a matter of fact, relying on her sponsor for support.

The Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, subclass 802, as the criteria for a dependent child were not met. No claims were advanced in respect of any other visa subclass within Class BT.