Muhammad (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant seeking to establish that they were a dependent child of an eligible person. The applicant's biological mother was a permanent visa holder. The primary dispute revolved around whether the applicant met the definition of a "dependent child" as defined in the Migration Regulations 1994. The decision was made by Member Maxina Martellotta of the Tribunal.

The Tribunal was required to determine whether the applicant satisfied the criteria for being a dependent child of an eligible person at the time of application and at the time of decision, as stipulated by clauses 802.212 and 802.221 of Schedule 2 to the Regulations. Specifically, the Tribunal needed to assess if the applicant was under 18 years of age and if the biological mother was an eligible sponsor, considering the definition of "dependent child" and the evidentiary requirements for establishing this relationship.

The Tribunal reasoned that the applicant, being under 18 years of age, met the primary limb of the definition of a "dependent child" under regulation 1.03. This was confirmed by the provision of a birth certificate, which established the biological link between the applicant and the sponsor. The Tribunal noted that the delegate had not been provided with this crucial document, leading to the initial refusal. Applying the principles from *Huynh v MIMA* [2006] FCAFC 122, the Tribunal found that the applicant's age and biological relationship to the sponsor satisfied the relevant criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant be considered to meet the criteria under cl 802.212(1) and cl 802.221(1)(a) of Schedule 2 to the Regulations, with the remaining criteria to be assessed.