1417442 (Migration)

[2015] AATA 3435

1417442 (Migration) [2015] AATA 3435 (23 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master NAWAPHON WONGSUPHAN

CASE NUMBER:  1417442

DIBP REFERENCE(S):  CLF2014/82457

MEMBER:Hannah McGlade

DATE:23 September 2015

PLACE OF DECISION:  Perth

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; and

Statement made on 23 September 2015 at 10:04am

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 on 3 October 2014 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 to the Department of Immigration for the visa on 6 June 2014. 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 which requires the applicant to meet Public Interest Criteria 4017.

4. The delegate refused to grant the visa on the basis that cl.802.225 was not met because PIC 4017 was not met. The applicant’s father had not signed the Form 1229 ‘Consent to grant an Australian visa to a child under the age of 18 years. The delegate was also not satisfied that the law of the applicant’s home country permitted his removal from Australia.

5. The applicant appeared before the Tribunal on 12 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Joseph Scott and Chanploy Scott, The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requirements of PIC 4017.  

PIC 4017

1. The criterion in cl.802.225 essentially requires that at the time of application, the applicant must satisfy PIC 4017 which provides:

The Minister is satisfied of 1 of the following:

(a)The law of the applicant’s home country permits the removal of the country;

(b)Each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

(c)The grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

1. Initially the delegate was not supplied with any information concerning the consent of the applicant’s father Songphao Inthanon. Nor was a court order provided showing that the applicant’s mother Chanploy Scott had the legal right to remove the child from Thailand.

2. Mr and Mrs Scott’s evidence was that they had tried hard to locate Nawaphon’s biological father, however, his relationship with Ms Scott had been over for many years and they could not locate him to seek his permission to remove Nawaphon from Thailand.

3. At the hearing the tribunal considered whether the laws of Thailand would permit the removal of Nawaphon in the absence of permission by one parent. According to the Thailand Civil and Commercial Code the parental powers are set out under Section 1566 and 1567. The person exercising parental powers has the right to determine the child’s place of residence. Parental powers are exercised by the father or mother dependent on a number of circumstances as set out.

4. Following the hearing Mr and Ms Scott provided the tribunal with a Form 1229 ‘Consent to grant an Australian visa to a child under the age of 18 years’ signed by Songphao Inthanon, the applicant’s biological father. The tribunal then arranged to interview Songphao Inthanon at the embassy in Bangkok to ensure that he had in fact signed the form and understood its content. The tribunal undertook the interview with Songphao Inthanon (whose passport was inspected by embassy staff) and he confirmed he had signed the form and understood its meaning.

5. On the basis of this evidence, the tribunal is now satisfied that PIC 4017 is met as it finds that the parents are the persons who can determine whether the applicant is to live  (under Section 1567 of the Code) and they have both given their consent to the grant of the visa.

6. Accordingly, cl.802.225 is met at the time of application, and continues to be met at the time of decision.

7. For the reasons above, the criteria in cl.802.225 are met.

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

DECISION

1. 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; and

Dr Hannah McGlade
Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.03     Definitions

…

dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a)has not turned 18; or

(b)has turned 18 and:

(i)       is dependent on that person; or

(ii)      is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

…

step-child, in relation to a parent, means:

(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

(b)a person who is not the child of the parent but:

(i)       who is the child of the parent’s former spouse or former de facto partner; and

(ii)      who has not turned 18; and

(iii)     in relation to whom the parent has:

(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

1.05A Dependent

1. Subject to subregulation (2), a person (the first person) is dependent on another person if:

   (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

   (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

   …