El Daye (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 101 (Child) visa. The review applicant, Ms Lamia El Daye, an Australian citizen, sought to sponsor her daughter, Ms Rola Said, for the visa. The Administrative Appeals Tribunal was required to determine whether the visa applicant met the criteria for a dependent child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen, as well as additional criteria applicable to a child who had turned 18 at the time of application.

The Tribunal was tasked with assessing whether the visa applicant was a 'dependent child' under clause 101.211(a) of the Regulations, and whether she met the further requirements of clause 101.221 concerning applicants who have turned 18. These provisions generally require the applicant to be under 25 years of age, or incapacitated for work, and to maintain a relevant child-parent relationship, with these criteria needing to continue to be met at the time of the decision, or only not met because the applicant has turned 25. The Tribunal considered documentary evidence, including the visa applicant's birth certificate, and oral evidence from both the review applicant and the visa applicant.

The Tribunal found that the visa applicant, born on 27 March 1996, had turned 18 at the time of application. Consequently, clause 101.211(1)(b) was satisfied at the time of application and continued to be met at the time of decision, as per clause 101.221(2)(a)(i). However, the Tribunal noted that there was no evidence presented to establish that the visa applicant was an adopted child or a specific type of step-child of the review applicant, as required by clause 101.211(1)(c).

Given these findings, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the criteria under clauses 101.211 and 101.221 of Schedule 2 to the Regulations.