Custodio (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Child (Residence) (Class BT) visa, specifically Subclass 802. The applicant sought to establish that he was a dependent child of an Australian relative and satisfied the relevant study requirements. The decision under review was made by the Migration Review Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for being a "dependent child" as defined by the Migration Regulations 1994, and if so, whether he also satisfied the study requirements for the visa. The definition of "dependent child" under regulation 1.03 and the broader concept of "dependent" under regulation 1.05A were central to the determination.

The Tribunal considered the applicant's evidence regarding his financial reliance on his mother. It noted that the definition of dependency under regulation 1.05A requires the applicant to be wholly or substantially reliant on the other person for financial support to meet basic needs, and that this reliance must be greater than reliance on any other source. The Tribunal found that while the applicant's mother provided significant financial support, including funds transferred to his grandparents for his upbringing and direct deposits into his Australian bank account, the evidence did not establish that he was wholly or substantially reliant on her to the exclusion of other potential sources of support, particularly in light of funds from the sale of a family home being deposited into his account. The Tribunal concluded that the applicant did not meet the criteria for being a dependent child.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.