Jashtehvand (Migration)

The Administrative Appeals Tribunal considered the case of an applicant for a Child (Migrant) (Class AH) visa, Subclass 101. The primary dispute concerned whether the applicant met the definition of a "dependent child" as defined in regulation 1.03 of the Migration Regulations 1994, specifically in relation to the criteria set out in clauses 101.211 and 101.221 of Schedule 2. The applicant was over 18 years of age at the time of the application and the decision under review.

The Tribunal was required to determine if the applicant was a "dependent child" at the time of application and at the time of the decision, considering the specific age requirements and exemptions. This involved assessing whether the applicant was wholly or substantially reliant on the sponsor for financial support for basic needs, and whether any interruptions to her full-time study were adequately explained. The Tribunal also considered the applicant's age at the time of application (23) and at the time of the decision (27), and whether she met the criteria for an exemption from the age requirements due to incapacitation for work.

The Tribunal found that the applicant was not married, engaged, or working full-time. While the applicant was over 18 and not incapacitated for work due to loss of bodily or mental functions, the Tribunal was satisfied that she had been undertaking full-time study. The Tribunal accepted that periods of interrupted study were due to complex family issues, including the applicant acting as a primary carer for her autistic brother while her mother suffered from depression, and the COVID-19 pandemic. The Tribunal concluded that the applicant met the dependency criteria under clause 101.211 and the age-related criteria under clause 101.221.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration. The direction was that the visa applicant met the criteria specified in clauses 101.211 and 101.221 of Schedule 2 to the Regulations.