22 Year Old Applicant Refused Child (Residence) (Class BT) Visa
Why Was the Applicant’s Child Visa Refused?
The Applicant, national of South Africa, applied for a Child (Residence) visa but was refused. For a Child visa, the Applicant could be assessed whether she is eligible for all the subclasses in the class of visa she applied for – Subclass 802 (Child) and Subclass 837 (Orphan Relative).
The visa application was refused on the basis that the Applicant did not meet cl 802.213(1)(a) which requires the Applicant to be under 18 years of age when the adoption took place. The Applicant was 19 years of age when the adoption order was made.
The Applicant applied to the Tribunal for review of the decision and requested that the Tribunal refer the matter to the Minister to intervene in this matter pursuant to s 351 of the Migration Act.
Tribunal’s Decision on the Appeal of the Child Visa Application
As the Applicant acknowledged that she did not meet the criteria of the child visa and did not provide further evidence to support her claim that she met the criteria for the grant of the visa, the Tribunal found that the Applicant cannot be granted a Child visa.
The Applicant submitted that there are a number of unique or exceptional circumstances and factors in her case that the Minister may consider exercising his discretion. Those include:
There is no other way for the Applicant to migrate to Australia with a valid visa given that she would not meet the genuine temporary requirement set out in cl 500.212 of Schedule 2 of the Migration Regulation
The Applicant’s former carer who looked after her when she had been living in South Africa had died so there is no one who could support the Applicant
The Applicant’s adoptive parents (the sponsor who is an Australian citizen) had been supporting her financially since she was young
Strong compassionate circumstances including the adoption was prepared well before the Applicant reached 18 years of age, the errors that were made by the Applicant’s former legal representative in relation to the adoption order, the age of 18 is at the margin of adulthood and that at the time of the hearing, the Applicant fulfilled the definition of ‘dependent’, Mrs Henrickse’s (sponsor’s wife) serious health condition and that the Applicant plays a role in her treatment program
Having examined the relevant factors and the credibility/validity of the oral evidence and submissions provided at the hearing, the Tribunal considered that it was appropriate to refer the matter to the Minister.
Key Takeaways
Under s 351 of the Migration Act, if the Minister thinks it is in the public interest to do so, the Minister has power to substitute the decision of the Tribunal for another decision that is more favorable to the Applicant.
In Davids’ case, the Applicant’s circumstances including that she had no one to look after her in South Africa, her sponsor had provided financial support and she had strong compassionate circumstances were such that it warrants bringing to the Minister’s attention.
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