Arek (Migration) [2020] AATA 1959 (27 May 2020)

Last Updated: 29 June 2020

Arek (Migration) [2020] AATA 1959 (27 May 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Christian Joseph Arek

CASE NUMBER: 1922312

HOME AFFAIRS REFERENCE(S): CLF2017/115352

MEMBER: Kira Raif

DATE: 27 May 2020

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:

• PIC 4017 for the purpose of cl.802.225 of Schedule 2 to the Regulations

Statement made on 27 May 2020 at 12:50pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – consent of each person who can determine where child is to live – father abandoned family – at time of department’s decision, whereabouts unknown – death certificate, verified as genuine, provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.225, Schedule 4, criterion 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 Home Affairs on 25 July 2019 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 was born in June 2004. He applied for the visa on 6 December 2017. The delegate refused to grant the visa on the basis that cl.802.225 was not met because the delegate was not satisfied the applicant met Public Interest Criterion (PIC) 4017. The applicant seeks review of the delegate’s decision.
3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

Relevant law

4. 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).
5. 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 PIC 4017 as required by cl.802.225. Essentially, it requires that each person who can determine where the applicant is to reside gives consent to the applicant’s migration or there is a relevant court order allowing migration.

Does the applicant meet PIC 4017?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate wrote to the applicant requesting him to provide evidence that his biological father gave consent for the child’s migration to Australia. The applicant (through his mother) informed the delegate that his father had abandoned the family and there was no contact with the father and his whereabouts were unknown. The delegate was not satisfied that the applicant met PIC 4017.
7. The applicant presented additional evidence to the Tribunal. Importantly, the applicant informed the Tribunal that his biological father had passed away and he presented the father’s death record. The Tribunal verified this document through the overseas post and received advice on 20 May 2020 that the death certificate was a genuine document. There is no evidence that the applicant’s mother had remarried or of adoption or any other arrangement that would give another person the right to decide where the applicant is to live.
8. The Tribunal finds that the only person who can decide where the applicant is to live is the child’s mother, who is the sponsor in the present case and has given consent for the child’s migration. The Tribunal is satisfied that the applicant meets PIC 4017 for the purpose of cl. 802.225.

Conclusion

9. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

DECISION

10. 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:
    • PIC 4017 for the purpose of cl. 802.225 of Schedule 2 to the Regulations

Kira Raif
Senior Member