Hsu (Migration) [2018] AATA 3539 (7 August 2018)

Last Updated: 19 September 2018

Hsu (Migration) [2018] AATA 3539 (7 August 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Master Hsu Kai Hsu

CASE NUMBER: 1714074

HOME AFFAIRS REFERENCE(S): CLF2017/5043

MEMBER: Hugh Sanderson

DATE: 7 August 2018

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

• cl.802.225 of Schedule 2 to the Regulations.

Statement made on 07 August 2018 at 11:20am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Requirement for consent to be provided by both parents if applicant under 18 - Applicant was under 18 years of age at time of Department decision – Applicant is now over 18 – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.225, Schedule 4, PIC 4017

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 June 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 9 January 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.225.
4. The delegate refused to grant the visa on the basis that cl.802.225 was not met because the applicant did not satisfy the criteria in PIC 4017 which requires, in part, that each person who can lawfully determine where the applicant is to live consent to the grant of the visa.

Background

5. The applicant is a citizen of Taiwan. He was born on 9 June 2000. He is sponsored in his application by his mother, Juei yu-Pi Juan, who was granted a Subclass 801 Partner (Residence) visa and now has the right to reside in Australia.
6. The application was filed on 9 January 2017. At that time, the applicant was 16 years old. The applicant provided a translation of a power of attorney purportedly made by the applicant’s father, Shu-Shuo Hsu. This stated that due to his busy work affairs Shu-Shuo Hsu was unable to personally deal with the arrangements for his children and entrusted his wife to handle those arrangements with total authority over the matters concerning overseas education, living and study arrangements for their two children.
7. The Department wrote to the applicant on 13 April 2017 requesting a copy of the original power of attorney, a copy of the applicant’s father’s passport or other documentation to compare any signature provided by the father, and a contact phone number for the father. The applicant did not respond to this request from the Department. On 13 May 2017 the Department again wrote to the applicant requesting this information. No response was received.
8. The delegate who considered the application was not satisfied that the information provided by the applicant indicated the applicant’s father, who could lawfully determine where the applicant is to live, consents to the granting of the visa. Accordingly, the delegate found that the criteria in PIC 4017 was not satisfied and therefore the applicant did not meet the criteria in cl.802.225 and refused the application.
9. As the applicant was born on 9 June 2000 he turned 18 years of age on 9 June 2018.
10. The Tribunal has proceeded to a decision without the need for a hearing.
11. The applicant was represented in relation to the review by his registered migration agent.
12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

13. The delegate refused the application because the delegate was not satisfied the applicant satisfied PIC 4017 which, in part, requires that each person who can lawfully determine where the applicant is to live consent to the grant of the visa. Accordingly, the delegate found the applicant did not meet the criteria in cl.802.225.
14. The criterion in cl.802.225 is a time of decision criteria. It provides that if the applicant has not turned 18, PIC 4017 and 4018 are satisfied in relation to the applicant. Although the delegate was not satisfied that the applicant met PIC 4017 at the time delegate made their decision, the applicant has now turned 18 years of age. Accordingly, it is not necessary for the applicant to satisfy PIC 4017 and 4018.
15. As the applicant has now turned 18 he now meets the criteria in cl.802.225.
16. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

DECISION

17. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
    • cl.802.225 of Schedule 2 to the Regulations.

Hugh Sanderson
Member