Latu (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 802 Child (Residence) visa made by the applicant, who was over 18 years of age at the time of application. The applicant sought the visa on the basis of being the dependent child of an Australian sponsor, Edward John Brown, who was his step-parent. The dispute arose because the applicant did not meet the primary criteria for the visa, leading to a request for referral to the Minister for intervention.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "dependent child" or "step-child" under the Migration Regulations 1994 for the purposes of a Subclass 802 visa. Specifically, the Tribunal had to determine if the applicant, having turned 18, qualified as a step-child given the sponsor's sole parental responsibility order, or if he was otherwise a dependent child of the sponsor. A secondary issue was whether the case warranted referral to the Minister for consideration under section 417 of the Migration Act 1958.

The Tribunal reasoned that the applicant did not meet the definition of a step-child under the regulations because he was over 18 years of age at the time of application, and the definition of step-child for those over 18 requires them to be the child of the parent's *current* spouse or de facto partner, which was not the case here as the applicant's mother had passed away. Furthermore, the Tribunal found that the applicant did not meet the definition of a dependent child as defined in the regulations, as the criteria for dependency were not satisfied. While acknowledging the compelling circumstances, including the death of the applicant's mother and the sponsor's sole parental responsibility order, the Tribunal concluded that these factors did not alter the applicant's ineligibility under the specific visa criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 802 Child (Residence) visa. The Tribunal noted that the applicant might wish to provide further supporting material directly to the Department for the Minister's consideration under section 417.