SMITH (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, sponsored by an Australian citizen. The applicant, Ms Neethling, was the biological daughter of the sponsor, Mr Dion Barden Smith, as confirmed by DNA testing. The dispute centred on whether Ms Neethling met the criteria for a "dependent child" under the relevant regulations, particularly given she was over 18 years of age at the time of application. The decision was made by Moira Brophy, a Member of the Tribunal.

The primary legal issues before the Tribunal were to determine if the applicant, Ms Neethling, met the requirements of clause 101.211 and clause 101.221 of Schedule 2 to the Migration Regulations. Specifically, the Tribunal had to ascertain whether Ms Neethling was a "dependent child" at the time of application and at the time of decision, considering her age and the definition of dependency. The Tribunal also needed to assess if the child-parent relationship criterion was satisfied.

The Tribunal reasoned that while Ms Neethling was over 18 at the time of application, the definition of "dependent child" in regulation 1.03 requires that if the child is 18 or older, they must be reliant on the parent for financial support for basic needs, or be incapacitated for work. The Tribunal noted that the crucial question was whether the applicant was, as a matter of fact, relying on the sponsor for support, rather than whether such support was strictly necessary. The Tribunal found that the applicant did not meet the definition of "dependent child" under regulation 1.03(a) as she had turned 18. However, the Tribunal also considered that the requirements of clauses 101.211 and 101.221 must continue to be met at the time of decision, or if not met, it is only because the applicant has turned 18 or 25.

Ultimately, the Tribunal found that the visa applicants satisfied the requirements of clauses 101.211 and 101.221. Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration, directing that the applicants met the specified criteria for a Subclass 101 (Child) visa.