Sun (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Miss Sun, a child born in China in 2009. The sponsor was Mrs. Toyama, who had arrived in Australia in 2013 and was granted permanent residency in January 2018. The applicant's biological father resided in China and was imprisoned from late 2019. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant qualified as a "dependent child" under the Migration Regulations 1994, specifically in accordance with clause 802.212 and regulation 1.03. This involved assessing whether the applicant was reliant on the sponsor for financial support to meet basic needs, or incapacitated for work, as defined by the regulations and interpreted by case law such as *Huynh v MIMA* [2006] FCAFC 122. The Tribunal also considered the implications of an "Agreement Concerning Maintenance Relationship Alteration" provided by the applicant's parents.

The Tribunal noted that the applicant was under 18 at the time of application and that the sponsor was an Australian permanent resident. While the definition of "dependent child" includes those under 18, the Tribunal considered the broader context of dependency and the evidence presented, including a letter from the biological father and the maintenance agreement. The Tribunal concluded that the matter should be remitted for reconsideration, finding that the applicant met several specified criteria for the Subclass 802 visa, including clause 802.212(1)(a).