Rugsat (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, made by a 15-year-old applicant sponsored by his Australian citizen father. The applicant had arrived in Australia on a Partner visa (Temporary) subclass 309 as a dependent child of his mother, who was the primary applicant. The subclass 100 permanent visa application was refused after the sponsor informed the Department that his relationship with the applicant's mother had ceased and they had divorced, with the mother departing Australia. The applicant subsequently lodged the current application, which was refused by the delegate on the basis that he did not meet the criteria under clause 802.211. The Administrative Appeals Tribunal was asked to review this refusal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Child (Residence) visa, specifically clause 802.211, which requires the applicant to be a dependent child of a sponsor who is an Australian citizen, permanent resident, or eligible New Zealand citizen. A further consideration was whether there were compelling compassionate circumstances that warranted referral for Ministerial Intervention under section 351 of the Migration Act 1958 (Cth).

The Tribunal considered the evidence presented, including the sponsor's financial hardship due to job loss during lockdowns and his family's migration history. The sponsor explained that his relationship with the applicant's mother deteriorated, leading to their divorce and an agreement that the children would remain with him in Australia. While the applicant was a dependent child of the sponsor, the Tribunal noted that the applicant did not hold a substantive visa at the time of application, and the delegate's decision was affirmed. However, having regard to the applicant's circumstances, the Tribunal considered that the case should be referred to the Department for consideration by the Minister under the discretionary power of Ministerial Intervention.