Fernando (Migration)

This matter concerned an application for review of a decision to refuse a Child (Residence) (Class BT) visa, subclass 802. The applicant, Jordan Imanuel Fernando, an adopted child, sought to have the refusal decision affirmed by the Tribunal. The sponsor, Ms Eleni Makineth Fernando, is an Australian citizen and the applicant's adoptive mother. The applicant had previously applied for a Child (subclass 802) visa on 3 April 2014, which was refused on 12 November 2014. At the time of the current application, the applicant did not hold a substantive visa, his previous visa having ceased on 10 December 2014.

The primary legal issues before the Tribunal were whether section 48 of the Migration Act 1958 (Cth) applied to the applicant, and if so, whether he had become a dependent child of the sponsor since his last substantive visa application, thereby satisfying the criteria under regulation 802.211 of the Migration Regulations 1994 (Cth). The Tribunal was required to consider the definition of a "dependent child" and the timing of when that dependency must arise in relation to the applicant's last visa application.

The Tribunal reasoned that section 48(1A) of the Migration Act applied to the applicant because he did not hold a substantive visa at the time of his current application and had previously had a visa application refused after his last entry into Australia. Consequently, the applicant was required to satisfy regulation 802.211, which mandates that a person to whom section 48 applies must have become a dependent child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen *since* their last substantive visa application. The delegate had found that the applicant did not meet this criterion because he was considered to have been a dependent child of his sponsor mother since his arrival in Australia in February 2014, and his sponsor had been an Australian citizen since 1997. Therefore, the applicant had not *become* a dependent child since his last visa application on 3 April 2014.

The Tribunal concluded that the decision under review should be affirmed. The applicant failed to satisfy the requirement under regulation 802.211 that he must have become a dependent child of an Australian citizen since his last substantive visa application.