Temwake (Migration)

The case of *Temwake (Migration)* concerned an application for a Child (Residence) (Class BT) visa, subclass 802, made by an applicant seeking to be recognised as the dependent child of the sponsor. The central dispute revolved around whether the applicant, who was the grandchild of the sponsor, could be considered the sponsor's child for migration purposes, particularly in the absence of a formal adoption arrangement and in light of a guardianship order. The matter was considered by a Tribunal member, David Crawshay.

The legal issues before the Tribunal were whether the applicant qualified as a "dependent child" of the sponsor under clause 802.212 of the Migration Regulations 1994, and consequently, whether the applicant was the "child of a person" as defined in section 5CA of the Migration Act 1958. This required the Tribunal to determine if the applicant could be considered an adopted child of the sponsor, given that the sponsor was the applicant's grandmother and there was no formal adoption.

The Tribunal reasoned that the applicant was not the biological child of the sponsor, as confirmed by birth certificates. Therefore, the applicant could only be considered the sponsor's child if they were an adopted child under section 5CA(1)(b) of the Act. The Tribunal examined the definition of "dependent child" in regulation 1.03, which includes a child or step-child who is dependent on the sponsor or incapacitated for work. The Tribunal also considered the provisions for adopted children under clause 802.213, which outline various scenarios for valid adoptions, including those where formal adoption was not reasonably practicable, or where compelling or compassionate circumstances existed.

Ultimately, the Tribunal affirmed the decision not to grant the visa. However, having considered the evidence and the circumstances, including the existence of a guardianship order and the potential for strong compassionate circumstances, the Tribunal decided to refer the application for ministerial intervention with a recommendation that the applicant's situation be considered.