Lo (Migration) - [2025] ARTA 479

LO (MIGRATION) [2025] ARTA 479 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Review Applicant:Ms Sze Yin Lo
Visa Applicant:  Miss Cheuk Ki Fong
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2018026

Tribunal:Senior Member J Marquard
Place:Sydney
Date: 6 March 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 06 March 2025 at 5:20am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – visa applicant over 18 at time of application – employment – partially dependent on the review applicant – money transfers – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.213, 101.221; rr 1.03, 1.05
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 21 October 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The visa applicant, Miss Cheuk Ki Fong, is a 29-year-old woman from Hong Kong. She turns 30 in September 2025. She has lived in Canada since 2024, but prior to this lived in Hong Kong.
Ms Fong is the biological child of Ms Sze Yin Lo, the review applicant, who was granted a Subclass 801 Partner visa in Australia on 24 January 2017. Ms Sze Yin Lo is the sponsor of the visa applicant.
The visa applicant applied for the Child (Migrant) (Class AH) Subclass 101 visa on 1 April 2020.
A delegate of the Department of Immigration and Multicultural Affairs (the Department) refused to grant the visa on the basis that the visa applicant did not meet cl 101.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) in that she was not a dependent child, as that term is defined in the legislation. The delegate also noted that the applicant did not meet cl 101.213 of Schedule 2 to the Regulations.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has taken into consideration the application for the visa and supporting documents, and new evidence before this Tribunal.
The applicants appeared before the Tribunal on 22 January 2025 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicants were satisfied with the standard of interpretation.
The evidence is referred to where relevant in the findings and reasons below.
FINDINGS AND REASONS
Relevant law
The Subclass 101 (Child) visa is for offshore child applicants. The criteria for a Subclass 101 (Child) visa are contained in part 101 of Schedule 2 to the Regulations. At the time of application an applicant must meet cl 101.211 of Schedule 2 to the Regulations which provides:
(1)  The applicant:
(a)  is a dependent child of:
(i)  an Australian citizen; or
(ii)  the holder of a permanent visa; or
(iii)  an eligible New Zealand citizen; and
(b)  subject to subclause (2), has not turned 25; and
(c)  either:
(i)  is:
(A)  the child (other than an adopted child); or
(B)  the step - child within the meaning of paragraph   (b) of the definition of step - child ;
of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph   (a); or
(ii)  was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
(2)  Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph   (b)(ii) of the definition of dependent child .
Regulation 1.03 of the Regulations defines ‘dependent child’ as follows:
"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 function
Regulation 1.05 provides the following definition of ‘dependent’:
(1)  Subject to sub-regulation  (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.
Clause 101.213 provides that;
(1)  If the applicant has turned 18:
(a)  the applicant:
(i)  is not engaged to be married; and
(ii)  does not have a spouse or   de   facto   partner; and
(iii)  has never had a spouse or   de   facto   partner; and
(b)  the applicant is not engaged in full - time work; and
(c)  subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full - time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
Clause 101.221 (2) of Schedule 2 to the Regulations provides that at the time of decision:
(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 101.211; 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 101.213.
The issue in the present case is whether the visa applicant met cl 101.211 and cl 101.213 of Schedule 2 to the Regulations. Cl 101.211 requires that at the time of application, the applicant is a ‘dependent child’. Clause 101.213 has additional requirements as the applicant was over 18 at the time of application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Time of application criterion – cl 101.211 of Schedule 2 to the Regulations
Clause 101.211 of Schedule 2 to the Regulations requires that at the time of application the applicant was a dependent child and had not turned 25. At the time of application, 1 April 2020, the applicant was over 18. Her birth date is 1995.
She was aged 24 and therefore met this aspect of cl 101.211.
The Tribunal has considered below whether she was a ‘dependent child’ as required by cl 101.211.
The definition of child in Regulation 1.03 requires that the applicant is under 18 or if over 18 is dependent on the sponsor.
As she was over 18, she must be ‘dependent’ to meet cl 101.211.
The definition of ‘dependent’ states that a person is dependent on another person if they are at the time of application, and have been for a substantial period immediately before then, wholly or substantially reliant on the sponsor for financial support to meet basic needs for food, clothing and shelter (Reg 1.05 (1)(a)(i).
The delegate of the Department refused to grant the visa on the basis that the applicant was not wholly or substantially reliant on the sponsor as required by Reg 1.05. She had given evidence to the Department that she was employed by Zuma Hong Kong as a bartender from April 2018 to August 2019, Blue Sea Production Limited as an Assistant Production Manager from November 2018 to January 2019 and Theatre Dojo Limited as an Arts Administrative Trainee from November 2019 to June 2020. At the time of application, she was employed by PCCW Solutions (commencement date of 19 August 2019). She provided a copy of her employment contract to the Department, showing that she earned HKD 13 5000 with a working schedule of 42.5 hours per week.
The Tribunal wrote to the applicant on 6 December 2024 and invited her to provide submissions.
She responded on 6 December 2024 in written submissions to the Tribunal. She said that she was not wholly reliant on her mother at the time of application. She said that she graduated from the Hong Kong Baptist University in 2017 and had unstable freelance jobs between 2017 and 2019. She said that between 2019 and 2021 she had low paying jobs (HKD $ 13 500). She provided copies of her employment contract. She said that she did not want to burden her mother who had just moved to Australia, but she was partially dependent on her as she had a tuition loan right after her graduation.
At the Tribunal hearing the visa applicant confirmed that at the time of application, 1 April 2020, she was not wholly or substantially reliant on her mother for financial support for food, clothing and shelter. She confirmed the details of her employment that she had provided to the Department but emphasised that her salary was low, and she had to pay her student fees. She said that most of her expenses including food, rent and clothing were paid for her by her own salary, although her mother augmented this with payments from time to time. She confirmed that at the time of application she had been working at her job for a period of a year so was not wholly or substantially reliant for the year prior to her application. She said that reliance on her mother was not greater than her own contribution, she just took some ‘extra’ from her mother. She said that her mother no longer supports her. She understands that she was not eligible for the visa. Her mother missed her and so she applied for the visa.
Ms Lo, the review applicant said that at the time of application her daughter was working. Ms Lo was unemployed but doing some casual work however her husband gave her some pocket money and she sent it over to her daughter to help her pay rent. She said that she would save some money to assist her. Every year she would give her money when she went to Hong Kong. She said that she tried her hardest to support her and felt a responsibility to her.
The Tribunal is not satisfied that the applicant is a dependent child as that term is defined in Reg 1.05, for the following reasons.
Firstly, as accepted by her, at the time of application she was not and had not been for a substantial period immediately before that time, wholly or substantially reliant on her mother for financial support to meet her basic needs for food, clothing and shelter (Reg 1.05(1)(a) (i)). She was primarily self-reliant and had been for a substantial period, working in various jobs and earning salaries to pay for her food, clothing, rent and other expenses.
Secondly, her reliance on her mother was not greater than reliance on any other person for financial support (Reg 1.05(1)(a) (ii)). She has stated that she was primarily self-reliant.
Thirdly, there is no evidence that she was wholly or substantially reliant on her mother for financial support because she was incapacitated for work due to the total or partial loss of her bodily or mental functions ((Reg 1.05(1)(b)).
The Tribunal is not satisfied that the applicant satisfies cl 101.211 of Schedule 2 to the Regulations as she is not a dependent child.
As the applicant does not meet cl 101.211 there was no need to consider cl 101.221 or cl 101.213 of Schedule 2 to the Regulations.
Time of application criteria - Clause 101.213
As the applicant was over 18 at the time of application, she was also required to meet cl 101.213 at the time of application.
The applicant must also meet (1)  If the applicant has turned 18:
(a)  the applicant:
(i)  is not engaged to be married; and
(ii)  does not have a spouse or   de   facto   partner; and
(iii)  has never had a spouse or   de   facto   partner; and
(b)  the applicant is not engaged in full - time work; and
(c)  subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full - time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
In the applicant’s letter on 6 December 2024, she said that that she was not married and did not have a partner. The Tribunal accepts her evidence as she was a credible witness who did not attempt to embellish her evidence. She met cl 101.213 (1)(a)(i) (ii) and (iii).
At the time of application, she was working for PCCW Solutions (commencement date of 19 August 2019). She provided a copy of her employment contract dated 19 August 2019 to the Department, showing that she earned HKD 13 5000 a month with a working schedule of 42.5 hours per week. Asked if she had been studying since turning 18 or within a reasonable time after completing the equivalent of year 12, she said in her letter on 6 December 2024 that ‘please refer to my academic transcript and graduation certificate for the full-time course from 2017 to 2019.
She confirmed that she finished studying full-time in 2017. She did study part-time for a degree through the University of Wollongong and worked full-time, after her application. She said that she wanted to rely on herself. She said that she understands that she does not meet the criteria.
In the visa applicant’s letter dated 6 December 2024 she said that that she was currently working part-time in No 10 Dean Café, in Ontario on a temporary working visa. She said that she is paid an hourly rate close to the Ontario minimum wage of CAD 17.2. A contract was provided dated 29 October 2024 showing that she was offered a part-time role as bartender. In Canada, she is on a scheme for young people where she can stay for one year and apply for permanent residency.
Ms Lo said that because of her financial situation she was forced to work part time and she still feels guilty for her situation. She said that she still feels she owes her daughter a lot. She said that her daughter is very independent and did not ask for help even when she was under 18. She tried to learn new skills to help her but feels guilty that she could not support her all the way through even if she was independent. She said that her daughter still needed parental care.
Ms Lo said that she understood that her daughter did not meet the criteria for the visa.
[Details deleted.] Ms Fong thanked the Tribunal for being fair and said that she accepts that her daughter does not meet the criteria. Ms Lo asked about visas and was referred to the Department, immigration lawyers or advice centres.
At the time of application, as the applicant was not studying full-time and was working full-time, she does not meet cl 101.213(1)(b) and(c).
As the applicant does not meet the criteria for a Subclass 101 visa the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing: 22 January 2025
Representative for the Applicant: Unrepresented