Thapa (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802. The applicant, who was 28 years old at the time of application, had arrived in Australia in July 2013 and had not departed since. The applicant’s last substantive visa application for a Subclass 573 Student visa was refused in November 2015, and he subsequently applied for the Subclass 802 visa in November 2016 while holding a Bridging visa. Section 48 of the Migration Act 1958 applied to the applicant due to the prior visa refusal. The sponsor was the applicant’s father, who held a permanent visa at the time of the application.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 802 visa, specifically whether he qualified as a "dependent child" as defined by the Migration Regulations 1994, at the time of his application. This involved determining if he met the requirements of cl.802.211, which included not having had a visa refused or cancelled under s.501 of the Act, and having become a dependent child of the sponsor since applying for his last substantive visa. The definition of a dependent child for an applicant over 18 required them to be dependent on the sponsor or incapacitated for work due to loss of bodily or mental functions.

The Tribunal considered the definition of "dependent" under reg.1.05A, which requires a person to be wholly or substantially reliant on the other person for financial support for basic needs, and for this reliance to be greater than any other source of support, or to be wholly or substantially reliant due to incapacity for work. While the Tribunal found the applicant met the criteria under cl.802.212, it concluded that he did not meet the requirements of cl.802.211. The Tribunal noted that the applicant's bank statements showed salary and amounts from his parents, indicating some financial support. However, the Tribunal found that the applicant had not established that he was wholly or substantially reliant on his sponsor for financial support to meet his basic needs, nor that this reliance was greater than any other source of support, at the time of application. The applicant's history of mental health issues, alcohol dependency, and a suicide attempt, along with living with his parents and receiving ongoing treatment, were noted but did not, in the Tribunal's assessment, satisfy the specific financial dependency criteria under cl.802.211(b) and reg.1.05A.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802, as the applicant failed to meet the necessary criteria under cl.802.211.