Li (Migration) - [2025] ARTA 1657

Li (Migration) [2025] ARTA 1657 (6 August 2025)
Applicant:Mr Tao Li
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2311458
Tribunal:Senior Member M Ison
Place:Melbourne
Date:  6 August 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 06 August 2025 at 5:18pm

CATCHWORDS
MIGRATION – CHILD (RESIDENCE) (CLASS BT) VISA – SUBCLASS 802 (CHILD) – YOUNG ADULT CHILD – DEPENDENCY – FINANCIALLY SUPPORT PARTLY BY SELF AND PARTLY BY MULTIPLE OTHER PEOPLE – FATHER/SPONSOR DIED WHILE REVIEW APPLICATION IN PROGRESS – NO RELATIONSHIP WITH STEP-MOTHER AND HALF-SIBLINGS – CURRENT BRIDGING VISA AND STUDY CLOSE TO COMPLETION – APPLICANT’S CONCESSION THAT HE NO LONGER MEETS REQUIREMENTS, CONSENT TO DECISION WITHOUT HEARING AND REQUEST FOR REFERRAL FOR MINISTERIAL CONSIDERATION – NO EVIDENCE OF UNIQUE OR EXCEPTIONAL CIRCUMSTANCES – APPLICANT CAN APPLY DIRECTLY – DECISION UNDER REVIEW AFFIRMED
LEGISLATION
Migration Act 1958 (Cth), ss 65, 348A(1), 351
Administrative Review Tribunal Act 1958 (Cth), s 106(3)(a), (b)(ii), (c)
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, Schedule 2, cls 802.212(1), 802.221(1), (2)(a)(i)
CASE
Davis v MICMSMA [2023] HCA 10
STATEMENT OF REASONS
APPLICATION FOR REVIEW
Introduction and background

On 29 November 2021 Mr Tao Li applied for a Child (Residence) (Class BT) (Subclass 802) visa to continue to reside in Australia with his father. At the time of application, Mr Li was aged 20.
Mr Li is now aged 24 and is a Chinese national who first arrived in Australia on 20 April 2019 as the holder of a Student (Subclass 500) visa. At the time of this decision, Mr Li holds a Bridging A (Subclass 010) visa.
Mr Li’s application for the Child visa was sponsored by his father, Mr Shouyu Li, who according to Mr Li the applicant, died during this review on 22 May 2025.
Mr Shouyu Li first arrived in Australia on 24 January 2013 as the holder of a Visitor (Subclass 676) visa but at the time of sponsoring his son’s visa application and at the time of his death was a permanent resident of Australia.
On 24 July 2023 a delegate of the Minister refused Mr Li’s application for the Child visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Mr Li is referred to as the applicant in these reasons for decision and his father, Mr Shouyu Li, is referred to as the sponsor in these reasons for decision.
Outcome of this review
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Administrative Appeals Tribunal replaced by the Administrative Review Tribunal
On 2 August 2023 the applicant applied to the Administrative Appeals Tribunal (AAT) to review the primary decision.
The AAT was abolished, effective on 13 October 2024, by the repeal of the Administrative Appeals Tribunal Act 1975 (Cth) by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Act). On 14 October 2024 the Administrative Review Tribunal (the Tribunal) was established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
Under the transitional provisions in the Transitional Act, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The primary decision
At the time the applicant applied for the Child (Residence) (Class BT) visa, Class BT contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (clauses 802.216 and 802.226A), the criteria to be met in this case include cl 802.212 which requires the applicant to be, in this case, a dependent child of the sponsor as a permanent Australian resident.
Clause 802.212(1) of Schedule 2 to the Regulations provides that at the time of application for the visa:
(1) The applicant:
(a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25.
Clause 802.221 of Schedule 2 to the Regulations provides that at the time of decision:
(1)       In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a)       continues to satisfy the criterion in clause 802.212; or
(b)       does not continue to satisfy that criterion only because the applicant has turned 18.
(2)      In the case of an applicant who had turned 18 at the time of application:
(a)       the applicant:
(i)      continues to satisfy the criterion in clause 802.212; or
(ii)  does not continue to satisfy that criterion only because the applicant has turned 25; and
(b)       the applicant continues to satisfy the criterion in clause 802.214.
The delegate refused to grant the Child visa to the applicant because the delegate was not satisfied that the applicant was a dependent child of the sponsor as it appeared to the delegate that the applicant was at least in part supporting himself financially and was also being supported financially by multiple people rather than primarily or just by the sponsor.
The term ‘dependent child’ for these purposes is defined in reg 1.03 and the term ‘dependent’ for these purposes is defined in reg 1.05A, both of which are reproduced in the Attachment to this decision.
The Minister for Immigration and Citizenship is listed as the respondent in this review on the cover sheet to this decision. Section 348A(1) of the Act provides:
The Minister is taken to be a non‑participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act.
Therefore, the Respondent did not appear before the Tribunal or participate in this review.
No Tribunal hearing held
On 30 April 2025 the Tribunal invited the applicant to appear before it to present his case on 7 August 2025, using the MS Teams platform.
On 15 July 2025 the applicant appointed Mr Da Wei (David) Gu, a practising lawyer from ProActive Legal, as his representative in this review. Mr Gu is referred to as the representative in these reasons for decision.
On 6 August 2025 the applicant’s representative emailed the Tribunal’s hearing invitation response form and a three-page submission with several documents attached to the Tribunal.
The completed hearing invitation response form stated the applicant declined the Tribunal’s invitation for the applicant to appear before it.
The representative’s 6 August 2025 submission stated the sponsor had died on 22 May 2025, the applicant accepts that this means his visa application no longer has a sponsor and cannot be granted on that basis but he seeks that the Tribunal refer his circumstances to the Minister for the Minister to consider intervening and granting the applicant a more favourable outcome.
Section 106 of the ART Act sets out when the Tribunal may make a decision in a review without holding a hearing. Subsections (1) and (3) of s 106 provide:
(1)  The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies. …
(3)       This subsection applies if:
(a)  the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and
(b)       either:
(i)      the decision is wholly in favour of the applicant; or
(ii)  the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c)  it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The Tribunal finds that the only parties to this review are the applicant and the Minister, who is a non-participating party as set out in paragraph 17 of these reasons for decision. The Tribunal finds the requirements of s 106(3)(a) are met.
The Tribunal finds that on 6 August 2025 the applicant requested that the Tribunal make its decision without holding the hearing of the proceeding. The Tribunal finds the requirements of s 106(3)(b)(ii) are met.
The Tribunal finds that in the applicant’s circumstances as submitted to the Tribunal the issues for determination in this review can be adequately determined in the absence of the parties to the proceeding. The Tribunal finds the requirements of s 106(3)(c) are met.
For these reasons, a hearing was not held in this review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the dependent child of the sponsor.
Dependent child criteria
The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a).
The applicant has submitted that the sponsor died on 22 May 2025.
The Tribunal has not been provided with a certificate certifying the date or cause of the sponsor’s death. The applicant’s visa application reveals that he has two half-siblings, a 43-year-old brother and a 30-year old sister, both of whom reside in Australia. The applicant submits that he has never met his half-siblings who have his father’s death certificate and for these reasons he has not been able to provide a copy to the Tribunal.
In a statutory declaration declared on 4 August 2025, the applicant declared (errors in the original):
3.      Prior to his passing, my father resided at [ address deleted ] with my step-mother and half sibblings.
4.      I had been in contact with my father until 19 May 2024, after which I lost contact with him.
5.      On 25 May 2024, I was informed by my biological mother in China that my father has passed away on 22 May 2024.
6.      I recall my father mentioned that he had issues with his lung. However, he did not share further details as he did not want to cause me concern. After his passing, my half brother, [ name and date of birth deleted ], informed me that my father's lung condition had worsened and it has metastasised to his brain. Based on this, I believe the cause of my father's death was lung cancer.
7.      Due to my family's circumstances as I am a child of my father outside of his marriage, I am unable to obtain my father's Death Certificate.
8.      On 27 May 2025, my half brother sent me a text message with the address of [ name deleted ] Funeral Directors, where my father's funeral was held on 31 May 2024. Again, due to my my family's circumstances, I did not attend the funeral.
9.      On 31 May 2025, my half brother sent me a text message providing the location of my father's grave, which is at [ name and suburb deleted ]. On the same day, I visited my father's grave for the first time.
The Tribunal notes the applicant has declared his father died in May 2024 in paragraph 5 of his declaration. The Tribunal regards this as a typographical error and accepts that the applicant’s father died on 22 May 2025.
As the Tribunal has found the sponsor died on 22 May 2025 the Tribunal further finds that the applicant is not a dependent child of an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of this decision and therefore does not meet the requirements of cl 802.221(2)(a)(i) of Schedule 2 to the Regulations.
Conclusion
For the reasons above, the applicant does not meet the requirements of cl 802.221(2)(a)(i) at the time of this decision.
For these reasons the criteria for the grant of a Subclass 802 visa are not met by the applicant. The applicant has advanced no claims in respect of the other visa subclass in Class BT (Subclass 837) and there is nothing in his circumstances known to the Tribunal to indicate he could met the criteria for that subclass of visa.
OTHER MATTERS – REQUEST TO REFER THE APPLICANT’S CIRCUMSTANCES TO THE MINISTER
The representative submitted in the submission dated 6 August 2025 (errors in the original):
Given circumstances of this matter and noting the applicant’s concession that he is no longer capable of satisfying cl.802.221, we are instructed to request the Tribunal to consider referring the applicant to the Minister for consideration of intervention.
We submit that applicant has a unique set of circumstances that is appropriate and in the public interest for ministerial intervention being:
1. The applicant first arrived in Australia in April 2019 as the holder of subclass 500 Student visa.
2. The applicant’s application for subclass 802 Child visa was not made for the purpose of cessation of study. The applicant’s study continued notwithstanding his application for permanent residence visa in that he has successfully completed Diploma of Information and Communication Technology and the Bachelor of Information and Communications Technology.
3. The visa refusal of the subclass 802 Child visa would not be viewed negatively by the Tribunal in determining whether to refer the matter to the Minister for consideration of intervention. This is because the death of the applicant’s father was an unfortunate turn of events beyond the applicant’s control. We submit had the applicant’s application for subclass 802 Child visa been more comprehensively prepared at the Department stage, it could have yield an entirely different outcome. Further, had this review being dealt with earlier, before the death of the applicant’s late father, it may also yield a different outcome. Thus, we submit that the current predicament is an extremely unfortunate set of circumstances that the applicant finds himself in.
4. The applicant presently wishes to regularise his visa status in Australia by returning to a subclass 500 Student visa so he can complete his current course of study in Master of Artificial Intelligence which he expects to complete this year.
The Tribunal has considered this submission.
Section 351 of the Act states:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. …
(3)The power under subsection (1) may only be exercised by the Minister personally. …
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.
There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their circumstances, irrespective of whether the Tribunal makes such a ‘referral’ or not.
In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be brought to the attention of the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.
While the administration of the 2016 Ministerial Instructions by the Department has been ruled as unlawful by the High Court of Australia, the 2016 Ministerial Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The 2016 Ministerial Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.
The full 2016 Ministerial Instructions can be found online at: >
The Ministerial Instructions are not a statement of law but do make it clear that the Minister exercising the power under s 351 of the Act is not part of the visa process and so the Tribunal as presently constituted does not make such ‘referrals’ lightly.
The Ministerial Instructions provide non-exhaustive examples of the unique or exceptional circumstance that may lead to the Minister exercising the power under s 351 of the Act, including the following examples:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
The Tribunal has considered the applicant’s circumstances and acknowledges that the applicant wishes to complete his current course of study, being a Master of Artificial Intelligence at a university in New South Wales, which the applicant expects to complete this calendar year.
The Tribunal accepts the submission of the representative that the death of the applicant’s father as the sponsor in this review was a very unfortunate circumstance outside the applicant’s control.
The Tribunal does not accept, based on the information presently before the Tribunal, the representative’s submissions that had the applicant’s visa application been more comprehensively prepared at the time of application or had the applicant’s father been alive at the time of this decision, that a different result may have been yielded in relation to the applicant’s visa application.
Based on the information the applicant has submitted to the Department and to the Tribunal the submission that the applicant would have met the time of application criteria at the time when his father, the sponsor, was alive if his visa application had been processed more expeditiously appears to be speculative to the Tribunal.
There is no information before the Tribunal about any harm – let alone serious, ongoing and irreversible harm and continuing hardship – that would be caused to an Australian citizen or Australian family unit if the applicant is not granted the visa. The evidence before the Tribunal is that the applicant has not met his half-siblings in Australia and his mother is in China.

There is also no information before the Tribunal about the applicant’s age, health or psychological state that suggests the applicant being refused the visa would result in serious, ongoing and irreversible harm and continuing hardship to the applicant.
In these circumstances, the Tribunal declines to refer the applicant’s circumstances to the Minister for the Minister to consider exercising his power under s 351 of the Act.
There is nothing preventing the applicant applying to the Minister directly with a request that the Minister exercises the Minister’s power under s 351 of the Act to grant the applicant a more favourable outcome and providing additional and updated information to the Minister if the applicant chooses to do so.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Date of hearing:  No hearing held
Representative for the Applicant:           Mr Da Wei (David) Gu of ProActive Legal
ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.03     Definitions
…
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)       is dependent on that person; or
(ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
…
step-child, in relation to a parent, means:
(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or
(b)a person who is not the child of the parent but:
(i)       who is the child of the parent’s former spouse or former de facto partner; and
(ii)      who has not turned 18; and
(iii)     in relation to whom the parent has:
(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
1.05A Dependent
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
…