Zabate (Migration)

The Administrative Appeals Tribunal considered the application of Ms Judelyn Dayot Zabate for a Child (Residence) (Class BT) Subclass 802 visa, with Mr Jeffery Smith named as the sponsor. The core of the dispute concerned whether Ms Zabate met the criteria for being a dependent child and, specifically, a step-child of the sponsor, following the refusal of her visa application by the delegate.

The Tribunal was required to determine whether Ms Zabate satisfied the definition of a "dependent child" as defined in regulation 1.03 of the Migration Regulations 1994, and whether she met the specific requirements for a step-child under the same regulation. This involved assessing her reliance on the sponsor for financial support for basic needs and considering the circumstances under which a step-child relationship could be established, particularly in light of the sponsor's relationship with Ms Zabate's mother and the Family Court orders concerning Ms Zabate.

The Tribunal found that Ms Zabate was a dependent child of the sponsor, as she had resided with him since her arrival in Australia and he had provided her with food and shelter, meeting the criteria for reliance on the sponsor for basic needs. Furthermore, as she was under 18 at the time of application, she met the age requirement for a dependent child. However, the Tribunal concluded that the criteria for a step-child were not met. This was because the definition of a step-child in regulation 1.03(b) requires that the parent of the step-child is a *former* spouse or de facto partner, and the sponsor and Ms Zabate's mother were in a continuing relationship at the time of the application.

Consequently, the Tribunal affirmed the decision not to grant Ms Zabate a Child (Residence) (Class BT) visa, as she did not satisfy the necessary criteria for the visa subclass.