Mesfin (Migration)

This matter concerned applications for Child (Migrant) (Class AH) visas, Subclass 101, made by two brothers, Yousef and Bruck, who were the adopted children of the review applicant, Ms Mesfin. The applications were before the Tribunal for reconsideration following a remittal from the Federal Circuit Court. The central dispute revolved around whether the visa applicants met the definition of "dependent child" under the Migration Regulations 1994 at the time of their visa applications.

The primary legal issue before the Tribunal was to determine whether Yousef and Bruck qualified as "dependent children" of Ms Mesfin, as defined by regulation 1.03 of the Migration Regulations 1994, at the time their visa applications were lodged on 31 May 2016. This required assessing whether they were under 18, or if over 18, whether they were financially dependent on Ms Mesfin or incapacitated for work. The Tribunal also had to consider the impact of their ages at the time of application and the subsequent adoption order made by the Federal First Instance Court of Ethiopia.

The Tribunal found that at the time of application, Yousef was 18 years old and Bruck was 20 years old, meaning neither met the criterion of being under 18. The Tribunal was satisfied that neither applicant was incapacitated for work, engaged, partnered, or had been employed. Crucially, the Tribunal noted that the definition of "dependent child" for those aged 18 or over requires them to be reliant on the parent for financial support to meet basic needs, or be incapacitated for work. While the Tribunal acknowledged the adoption order and the fact that Ms Mesfin had left the applicants in Ethiopia shortly after the adoption, it found no evidence that either applicant was financially dependent on her at the time of application. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister to consider the remaining visa criteria.