Quelino (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who was over 24 years of age. The applicant sought to be recognised as a dependent child of an Australian relative. The core of the dispute revolved around whether the applicant met the criteria for financial dependence at the relevant times.

The Tribunal was required to determine whether the applicant was a "dependent child" as defined by regulation 1.03 of the Migration Regulations 1994 at the time of application and at the time of the decision. Specifically, the Tribunal had to assess whether the applicant, having turned 18, was reliant on his father for financial support to meet his basic needs, and whether this reliance continued to be met at the time of the decision.

The Tribunal applied the principles established in *Huynh v MIMA* [2006] FCAFC 122, which clarified that dependency is a question of fact, requiring the applicant to be relying on the parent for support, rather than a strict necessity for that support. While the Tribunal accepted that the applicant had received financial support from his father for rent, utilities, and food, it also noted that the applicant had part-time employment and purchased his own clothing. Crucially, the Tribunal found that upon completing his studies and obtaining full-time employment in November 2023, the applicant was no longer wholly or substantially financially dependent on his father to meet his basic needs. Consequently, the Tribunal concluded that the applicant did not meet the definition of a dependent child at the time of the decision.

The Tribunal affirmed the decision not to grant the visa, as the applicant failed to satisfy the criteria for a Subclass 802 visa. However, the Tribunal considered the matter appropriate for referral to the Minister for potential discretionary intervention under section 351 of the Migration Act 1958, noting the applicant's genuine dependence and the significant delay in the review process, which had led to the applicant no longer meeting the legislative criteria.