Johnny (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by the applicant, who was a minor. The applicant had previously applied for an Adoption (Subclass 102) visa in July 2019, which was refused in November 2021. The applicant's Visitor visa expired on 27 February 2022, and the Child visa application was lodged on 28 February 2022. The primary decision maker and the Tribunal both found that the applicant was not the holder of a substantive visa at the time of lodging the Child visa application, meaning section 48 of the Migration Act 1958 (Cth) applied. The case was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 802 visa, specifically clause 802.211(b) of the Migration Regulations 1994 (Cth). This clause requires that if section 48 applies, the applicant must have become a dependent child of an Australian citizen, permanent resident, or eligible New Zealand citizen *since* their last substantive visa application. The applicant argued that postal delays due to COVID-19 meant her application should have been considered lodged before her Visitor visa expired, and that she had become a dependent child of her adoptive parents since her previous Adoption visa application.

The Tribunal accepted the applicant's evidence that she posted the visa application on 22 February 2022 and that postal delivery times were affected by COVID-19. However, the Tribunal found that the application was officially received and date-stamped on 1 March 2022, with the lodgement date being considered the previous business day, 28 February 2022. This date was after the expiry of her substantive Visitor visa on 27 February 2022. The Tribunal also found that the applicant was adopted in May 2019, meaning she was already a dependent child of her adoptive parents when she made her previous Adoption visa application in July 2019. Therefore, she did not *become* a dependent child since that last application, and thus did not satisfy clause 802.211(b). The Tribunal affirmed the primary decision.