1602243 (Migration)

[2016] AATA 3937

1602243 (Migration) [2016] AATA 3937 (6 June 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natasya Aliftya

CASE NUMBER:  1602243

DIBP REFERENCE(S):  CLF2015/58767

MEMBER:Wendy Banfield

DATE:6 June 2016

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 06 June 2016 at 5:42pm

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 5 February 2016 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 21 September 2015. 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 Public Interest Criteria (PIC) 4017 was not satisfied.

5. The visa applicant appeared before the Tribunal on 6 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her mother Ms Heppy Kusuma Wardhani and step-father Jake Peter Eller.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   The hearing

7. The visa applicant Natasya Aliftya appeared with her step-father Mr Ella acting as her representative and her mother who gave evidence as a witness. Ms Wardhani, the visa applicant’s mother gave evidence that she split up with Natasya’s father not long after her birth and although they got back together briefly, they separated for good in 2004. She came to Australia with her current husband Mr Ella in 2010 and Nataysa lived with her maternal grandparents until 2015.

8. According to Ms Wardhani, she was granted full custody of Nataysa by the courts in Indonesia. Evidence of the court ruling was obtained which indicated the former husband retained rights in relation to educating and giving love and attention to the child. Based on advice from the Department’s overseas post in Indonesia, the court order alone was not sufficient. Ms Wardhani had believed her daughter satisfied the criteria for the visa, the Department determined that PIC 4017 was not met because the father had not given consent to the grant of the visa. An extension of time was sought to pursue the matter through the courts but this was not granted as it would be unfair to the other party.

9. Prior to the hearing, the Tribunal received advise that the parties had travelled to Indonesia to seek the father’s consent to the visa. A copy of the Department’s Form 1229 was provided dated 10 May 2016 and signed by Mr Haryanto, the visa applicant’s father.

10. The Tribunal asked why the other party had agreed to sign the consent form and Ms Wardhani said she had told her former husband that she would have to pursue the matter through the courts if he did not consent which may result in him not having any access to his daughter. Ms Wardhani said she did not want to take this course as she did want her daughter to continue to have a relationship with her father, but since her former husband rarely saw his daughter unless she was taken to where he lived, she believed he was being unfair. She also said her father and step-mother, Nataysa’s grandparents who had cared for her, did not want her to join her mother in Australia and had pushed the father not to consent. According to Ms Wardhani, her parents had subsequently separated and she thought they had therefore ceased pressuring her ex-husband.

11. Mr Ella told the Tribunal that when they met with Mr Haryanto for him to sign the consent form, they took along a witness and filmed the proceeding in case there were any issues in future.

12. The visa applicant Nataysa Aliftya told the Tribunal she wanted to stay in Australia with her mother and was happy here. Ms Wardhani said her husband Mr Ella is the only father she has ever really known.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is, since the applicant has not turned 18, whether each person who can lawfully determine where the applicant is to live consents to the grant of the visa as required by PIC 4017.

15. Based on the evidence provided, the Tribunal is satisfied each person, who can lawfully determine where the applicant is to live, that being Nataysa’s mother Ms Wardhani and her father Mr Haryanto, consents to the grant of the visa. A Form 1229 has been completed and signed by both people with parental responsibility for the child. A copy of Mr Haryanto’s identify card is included. For this reason, the Tribunal is satisfied PIC 4017 is met.

16. Having had the benefit of the visa applicant, her mother and step-father appear at the hearing, the Tribunal is satisfied there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. For this reason, the Tribunal is satisfied PIC 4018 is met.

17. Accordingly, cl.802.225 is met. Given the findings above, the appropriate course is to remit the matter to the Minister to consider any remaining criteria for the visa.

    DECISION

18. 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.

    Wendy Banfield
    Member