Eshete (Migration)

The Federal Circuit Court considered an appeal concerning a Subclass 445 (Dependent Child) visa. The applicant, Mr. Eshete, sought this visa as the child of the visa-holding parent, Ms. Asmamaw. The central dispute revolved around whether Mr. Eshete met the definition of "child" for the purposes of the visa application at the time it was lodged.

The primary legal issue before the court was to determine if the applicant qualified as a "child" of the sponsor under the Migration Act 1958 (Cth) and its associated regulations, specifically in relation to the requirements for a Subclass 445 visa. This involved interpreting the definition of "child" as it relates to familial relationships, particularly given the applicant's age and the circumstances of his parental relationships.

The court found that the applicant was 17 years old at the time of application and, by virtue of his age, was considered dependent on the visa-holding parent, Ms. Asmamaw, in accordance with sub-regulation 1.03(a). The court also accepted evidence that the applicant's father had abandoned him and was no longer involved in his life. Crucially, the court interpreted section 5CA(1)(a) of the Migration Act, which links the definition of "child of a person" to the meaning within the Family Law Act 1975. While the Family Law Act does not provide a precise definition of "child," the court reasoned that, in the context of migration law, this generally refers to the biological child of a person. Given these findings, the court determined that the applicant met the definition of "child" and was dependent on the visa-holding parent at the time of the application.

Consequently, the Tribunal remitted the application for reconsideration with the direction that the applicant met the requirements of clauses 445.211 and 445.222 of Schedule 2 to the Regulations.