Javier (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Kyla Javier, an 18-year-old resident of the Philippines, who had been in Australia on a bridging visa for nearly three years. The review applicant was Janice Javier Graham, Kyla's mother and a permanent resident of Australia. Kyla had arrived in Australia at age 15, claiming to have been living with her biological father and grandmother in the Philippines while her mother had migrated to Australia. Kyla's mother, Janice, stated that Kyla was her natural child, born out of wedlock when Janice was 17.

The Tribunal was required to determine whether Kyla met the criteria for being a "dependent child" of Janice at the time of her visa application, as per clause 802.212 of the Migration Regulations 1994, and whether she continued to meet these criteria at the time of the decision, despite having turned 18, under clause 802.221. The definition of "dependent child" in regulation 1.03 includes a child who has turned 18 and is reliant on the parent for financial support to meet basic needs, or is incapacitated for work. Regulation 1.05A further clarifies that dependency requires the first person to be wholly or substantially reliant on the other for financial support for basic needs, and for this reliance to be greater than any reliance on other sources.

The Tribunal found that Kyla, at the time of her application, was a 15-year-old school student living with her mother in Australia. On review, Kyla claimed to remain wholly dependent on her mother for financial support for basic needs, having no other income. Evidence was presented of Kyla's full-time enrollment in English as an Additional Language and subsequently at Yeronga State High School, with intentions to pursue further education. Kyla provided bank statements showing minimal transactions, which the Tribunal considered to reflect transfers between her and her sponsor. The Tribunal also noted evidence of funds transferred by Janice's partner to Kyla's grandmother in the Philippines prior to Kyla's arrival in Australia, which Janice claimed were for Kyla's support. The Tribunal was satisfied that Kyla was reliant on her mother for financial support.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration. The Tribunal directed that Kyla met the criteria under cl.802.212 and cl.802.221 of Schedule 2 to the Regulations, leaving the Minister to consider the remaining visa criteria.