Lumacang (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), by a visa applicant who had turned 18 since lodging the application. The review applicant, the visa applicant's mother, provided a birth certificate which identified her as the mother but contained no information regarding the father, noting the parents' marriage details as "Illegitimate". The Administrative Appeals Tribunal was required to determine whether the visa applicant met the dependent child criteria at the time of application and at the time of the decision.

The Tribunal considered the requirements of cl 101.211 and cl 101.221 of Schedule 2 to the Migration Regulations 1994. Specifically, it examined the definition of a "dependent child" under reg 1.03, which requires the child to be under 18, or if 18 or older, to be financially dependent or incapacitated for work. The Tribunal also considered the provisions of cl 101.221, which stipulate how the criteria are assessed if the applicant turns 18 or 25 during the application process.

The Tribunal found that the visa applicant was 17 years old at the time of application and met the definition of a dependent child under reg 1.03(a). It further found that, pursuant to cl 101.221(1)(b), the applicant would be assessed as if still under 18 at the time of the decision, and as he was now 19, he continued to meet the dependent child criteria. However, due to the lack of information regarding the father on the birth certificate, the Tribunal could not assess the child-parent relationship criterion under cl 101.211(1)(c). Consequently, the Tribunal remitted the application for reconsideration by the Minister to consider the remaining criteria.