1508093 (Migration)

[2015] AATA 3969

1508093 (Migration) [2015] AATA 3969 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yu-Ting Hung

CASE NUMBER:  1508093

DIBP REFERENCE(S):  CLF2015/25416

MEMBER:Catherine Carney-Orsborn

DATE:21 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) Dependent Child (subclass 445) visa for reconsideration, with the direction that the applicant meets the following criteria:

·PIC 4017 for the purposes of cl.445.226 of Schedule 2 to the Regulations.

Statement made on 21 December 2015 at 2:54pm

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 11 June 2015 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 April 2015. The delegate refused to grant the visa on the basis that the applicant does not meet Public interest criteria 4017.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfied the Public interest criteria 4017.  As required by cl.445.226 at the time of decision.

7. Public interest criterion 4017 is set out below.

   [4017]   The Minister is satisfied of 1 of the following:

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

   (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.

8. The Department had requested further documents which the applicant had not provided.

9. The applicant with the assistance of her representative has now provided those documents to the Tribunal.

10. The Tribunal has before it the applicant’s birth certificate and a copy of a household registration transcript.

11. The applicant supplied to the Tribunal a Form 1229 signed by both the applicant’s biological parents, attached to that form was a copy of the applicant’s father’s passport.  That Form indicates that the applicant’s father has given his consent to his daughter being granted an Australian visa.  The father’s signature on the Form 1229 and the passport are consistent.

12. A Household Registration Transcript was also provided.  That document records that the applicant’s parents are divorced and the applicant’s mother has rights and obligations to the applicant. This information accords with information provided by the applicant and held on the Department file. 

13. The Tribunal has considered the information contained in all the documents provided.  The Tribunal has sought assistance to compare the signatures of the father on the Form 1229 and the passport. 

14. The Tribunal is satisfied that the information is consistent.  The Tribunal is satisfied that the applicant’s father is a person who can lawfully determine whether the applicant is to live.  The Tribunal is further satisfied that the father of the applicant has given his consent to the applicant (his daughter) for her to be granted an Australian visa (temporary) which will allow her to live in Australia.   

15. On the basis of the evidence before the Tribunal, the applicant satisfies PIC 4017.

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

    DECISION

17. The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) Dependent Child (subclass 445) visa for reconsideration, with the direction that the applicant meets the following criteria:

    ·     PIC 4017 for the purposes of cl.445.226 of Schedule 2 to the Regulations.

    Catherine Carney-Orsborn
    Member