Suguturaga (Migration)

This matter concerned an application for review of a decision by the Migration Tribunal to affirm a delegate's refusal of a Child (Residence) (Class BT) visa, subclass 802. The applicant, a young woman, sought to establish that she was the "dependent child" of her mother, an Australian permanent resident, as required by regulation 1.03 and clause 802.212 of the Migration Regulations 1994. Initially, the parties had failed to provide probative evidence of the applicant's parentage, but a birth certificate was subsequently produced and accepted by the Tribunal. The central dispute revolved around whether the applicant was wholly or substantially reliant on her mother for a reasonable period, specifically a 12-month period preceding the visa application.

The Tribunal was required to determine whether the applicant met the criteria for being a "dependent child" under the relevant regulations. This involved assessing whether she was wholly or substantially reliant on her mother, considering her financial circumstances, living arrangements, and any other sources of support. The Tribunal also had to consider the definition of "dependent" and "substantially reliant" as interpreted by Australian courts, including the nature of the applicant's needs and the extent to which they were met by herself and her nominator.

In its reasoning, the Tribunal noted that the applicant had lived with her mother in Australia since May 2014. She commenced part-time work in July 2015, earning approximately $300 per week, and intended to resume full-time study in January 2016. The applicant's mother provided her with food and shelter, and sometimes clothing, while the applicant contributed her wages, which were primarily used for rent. The Tribunal applied the legal principle that "substantially reliant" means "predominantly" or "primarily, essentially or in the main." It also considered case law, including *Fusi v MIAC* and *Huynh v MIMIA*, which established that the assessment of dependency should consider all sources of financial support and does not require proof of necessity or lack of choice. The Tribunal found that the applicant's income was insufficient to live independently and that her mother provided for her basic needs, including food and shelter. The Tribunal concluded that the applicant was substantially reliant on her mother for a reasonable period prior to the application.

The Tribunal affirmed the delegate's decision, finding that the applicant met the criteria under clause 802.212(1)(b) at the time of application. The Tribunal also noted that the applicant did not meet the criteria under clause 802.212(2) as she was not incapacitated for work.