Soekadar (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Residence) (Class BT) visa, Subclass 802. The core dispute concerned whether the applicant was the dependent child of the sponsor, an Australian citizen. The delegate had refused the application, finding the claimed familial relationship unproven due to discrepancies in the applicant's birth certificates and a failure to undertake DNA testing when requested.

The Tribunal was required to determine if the applicant met the criteria for a dependent child under the Migration Regulations 1994, specifically whether the applicant was a dependent child of an eligible sponsor and met the age and dependency requirements. The definition of "dependent child" in regulation 1.03 and the test for dependency in regulation 1.05A were central to this determination.

Deputy President Justin Owen reasoned that the delegate's refusal was based on the lack of DNA evidence and the initial absence of the sponsor's details on the applicant's birth certificate. However, the sponsor subsequently provided evidence of a DNA test conducted in 2018 and explained the oversight in responding to the Department's request for further testing. The Tribunal noted the applicant's status as a high-performance athlete with significant future ambitions. Given these circumstances and the unfortunate delay in resolving the matter, the Tribunal concluded that the application should be remitted for reconsideration.

The Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration, directing that the applicant be assessed against the criteria in cl 802.212 and cl 802.221(1) of Schedule 2 to the Regulations.