Chisango (Migration)

The Administrative Appeals Tribunal considered the case of Ms Dudzai Chisango, an Australian permanent resident, who sought to sponsor a visa applicant, a 17-year-old male from Zimbabwe, for a Child (Migrant) (Class AH) visa, Subclass 101. The visa applicant's parents had passed away, and his uncle had been appointed his legal guardian. Ms Chisango claimed to be the visa applicant's step-mother, asserting she had been in a customary marriage with the visa applicant's deceased father and had provided him with financial and emotional support since childhood, even after she moved to Australia.

The central legal issue before the Tribunal was whether the visa applicant qualified as a "dependent child" of Ms Chisango for the purposes of the Migration Regulations 1994. This required determining if the visa applicant met the definition of a step-child under the regulations, specifically whether he was the child of Ms Chisango's former spouse and if Ms Chisango had a parenting order, guardianship, or custody in relation to him. The Tribunal also considered whether the applicant met the criteria for an "orphan relative" visa.

The Tribunal reasoned that while the visa applicant was an orphan and had received support from Ms Chisango, he did not meet the definition of a step-child as defined in the regulations. The definition of step-child requires either the parent to have a current spouse or de facto partner, or if it is a former spouse, then specific legal arrangements such as a parenting order or guardianship/custody must be in place. In this case, there was no evidence of a parenting order or formal guardianship or custody arrangements between Ms Chisango and the visa applicant. Consequently, the visa applicant did not meet the definition of a dependent child or an orphan relative.

Accordingly, the Tribunal affirmed the decision to refuse the visa application.