Ibizi (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a visa applicant who claimed to be the biological child of the review applicant, Mr Frack Lufalanga Ibizi, an Australian citizen. The core dispute revolved around whether the visa applicant met the criteria for a dependent child at the time of application and at the time of the decision. The case was heard by Peter Vlahos of the Tribunal.

The Tribunal was required to determine whether the visa applicant met the dependent child criteria as set out in clause 101.211 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant was a "dependent child" as defined in regulation 1.03, and whether the applicant was in a relevant child-parent relationship with the sponsor. The Tribunal also needed to consider the provisions of clause 101.221 regarding the age of the applicant and the continuation of the dependent child status.

The Tribunal found that the visa applicant, born on 20 September 2000, was 16 years old at the time of application and therefore met the definition of a child under regulation 1.03(a). As the applicant was under 18 at the time of application, he was to be assessed as if still under 18 at the time of decision, and the Tribunal found he continued to meet the dependent child criteria. The birth certificate provided established the biological parent-child relationship, and while a DNA test was requested by the Department, the Tribunal focused on the existing evidence. The Tribunal concluded that the applicant met the criteria under cl 101.211 and cl 101.221.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration by the Minister, with the direction that the visa applicant met the criteria specified in cl 101.211 and cl 101.221 of Schedule 2 to the Regulations.