Katongo (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child). The applicant was the child of a sponsoring father. The dispute before the Tribunal was whether the applicant met the definition of a "dependent child" at the time of the visa application. The decision was made by Senior Member Michael Cooke.

The Tribunal was required to determine whether the applicant satisfied the criteria for a dependent child under regulation 1.03 of the Migration Regulations 1994, specifically in relation to clause 101.211 of Schedule 2 to the Regulations. This involved assessing whether the applicant was under 18 years of age at the time of application and, if over 18, whether they were financially dependent on the sponsor or incapacitated for work. The Tribunal also needed to consider the provisions of clause 101.221, which address the continuation of these criteria at the time of decision.

The Tribunal reasoned that for a visa applicant who is under 18 years of age at the time of application, the criterion of being a "dependent child" is met by virtue of their age alone, without requiring an assessment of financial dependency under regulation 1.05A. The applicant, born on 15 March 2000, applied for the visa on 13 March 2018, making them 17 years old at the time of application. The Tribunal also noted that for applicants under 18 at the time of application, they are assessed at the time of decision as if they were still under 18, regardless of whether they have since turned 18. Therefore, the Tribunal concluded that the applicant met the criteria under cl 101.211 and cl 101.221 of Schedule 2 to the Regulations.

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 meets the specified criteria.