1608177 (Migration) - [2016] AATA 4262

1608177 (Migration) [2016] AATA 4262 (16 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr William Husin
CASE NUMBER:  1608177
DIBP REFERENCE(S):  clf2015/26564
MEMBER:Michelle Grau
DATE:16 August 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 802 visa:
·Public interest criterion 4018 in cl.802.225 of Schedule 2 to the Regulations.

Statement made on 16 August 2016 at 9:37am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 17 May 2016, to refuse to grant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.
The review application was lodged with the Tribunal on 6 June 2016. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who was the subject of the decision (ie. visa applicant)
In the present case, the review application was completed by the visa applicant’s mother (also the sponsor) and she was named as the review applicant. The tribunal has considered the issue of standing and whether it has jurisdiction, given the sponsor, and not the visa applicant, was named as the review applicant in the application and she also completed and signed the review application.
The tribunal has had regard to decisions in SZMME v MIAC[1], Hassan v MIBP[2], Jalagam v MIAC and Zaki v MIBP[3] which are cases about the standing of the review applicant and another person completing the form as the review applicant. The tribunal notes another person acting on the review applicant’s behalf may physically complete and sign the form.
[1] [2009] FMCA 323
[2] [2015]FCCA 894
[3] [2009] FCA 197 and [2015]FCCA 2575
The tribunal notes in this case the visa applicant is a child, aged 15 years at the time of the review application. Further, the sponsor noted in an email to the tribunal that she was applying for review on behalf of her children. The review application also clearly indicated the name of the visa applicant in the application and that it was an application to review the refusal of the applicant child visa application. It was clear in the review application form that it was a review application in respect of her child. Further the supporting letter made it clear that she was lodging the review applications on behalf of her two children.
The tribunal finds the visa applicant’s mother completed, signed and lodged the review application on behalf of her minor child. In the circumstances of this case, the tribunal finds the mother of the visa applicant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1608177 (Migration)

Details

AGLC: 1608177 (Migration) [2016] AATA 4262
Case: [2016] AATA 4262
Decision Date: 16 August 2016

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa by a Papua New Guinea citizen who was residing in Australia with his Australian citizen mother. The dispute before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4018, which requires the Minister to be satisfied that there is no compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal was required to determine if PIC 4018 was satisfied, particularly in light of Regulation 1.20KB of the Migration Regulations 1994, which imposes limitations on the approval of sponsorships for applicants under 18 if the sponsor has been charged with or convicted of a registrable offence. The initial delegate had not been satisfied that the sponsor met the requirements of Regulation 1.20KB due to a lack of a Papua New Guinea police clearance, leading to the conclusion that PIC 4018 was not met.

The Tribunal reasoned that while the delegate's initial concerns regarding the sponsor's lack of a Papua New Guinea police clearance were valid, the sponsor had since provided a clearance dated 2 June 2016 indicating no criminal record, along with an Australian Federal Police clearance. The Tribunal accepted that the sponsor had no criminal convictions and therefore met Regulation 1.20KB. Furthermore, considering the sponsor's full-time employment, her support of her children in Australia, and character references, the Tribunal found that there was no compelling reason to believe that granting the visa would not be in the best interests of the applicant.

Consequently, the Tribunal was satisfied that the applicant met PIC 4018. The Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with a direction that the applicant meets the criteria for PIC 4018 in clause 802.225 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether PIC 4018 is satisfied. PIC 4018 requires the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. The visa applicant is a Papua New Guinea citizen who attends school in Bundaberg and lives with his mother, who is an Australian citizen. The sponsor formerly lived in Papua New Guinea. It was apparent from the departmental file that the delegate had requested that the sponsor provide her Papua New Guinea police clearance a number of times but none was provided. As the sponsor did not provide a police clearance from Papua New Guinea the delegate was not satisfied that the sponsor met the requirements of r1.20KB. In essence r.1.20KB requires that sponsors, particularly for under age migrants, do not have certain criminal convictions. The delegate was therefore not satisfied that there was no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. Therefore the applicant did not meet PIC 4018. However at review the sponsor provided a Papua New Guinea police clearance dated 2 June 2016 which stated that she had no criminal record. The sponsor had also provided an Australian Federal Police clearance to the department. As a result the tribunal accepts the sponsor has no criminal convictions and therefore r.1.20KB is met. Further, the tribunal notes the sponsor has a full time job and has been fully supported her children in Australia. She also provided a number of character references. The tribunal accepts the sponsor is of good character and cares for her children, including the visa applicant. The tribunal therefore finds there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. Accordingly, the tribunal is satisfied the applicant meets PIC 4018 in cl. 802.225. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 802 visa:·Public interest criterion 4018 in cl.802.225 of Schedule 2 to the Regulations.Michelle GrauMemberATTACHMENT – RELEVANT LAWMigration Regulations 1994802.225If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.802.226The sponsorship mentioned in clause 802.215 has been approved by the Minister and is still in force.Note: Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.4017The 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.4018The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.1.20KB (1)This regulation applies in relation to:(a) an application for any of the following visas:(i) a Child (Migrant) (Class AH) visa;(ii) a Child (Residence) (Class BT) visa;(iii) an Extended Eligibility (Temporary) (Class TK) visa;(iv) a Partner (Temporary) (Class UK) visa;(v) a Prospective Marriage (Temporary) (Class TO) visa;(vi) a Partner (Provisional) (Class UF) visa;if the primary applicant or secondary applicant is under 18 at the time of the application; and(b) an application for the approval of a sponsorship in relation to that application for a visa.Sponsor charged with registrable offence (2) If the sponsor has been charged with a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or(b) the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction.Sponsor convicted of registrable offence (3) Subject to subregulations (4) and (5), if the sponsor has been convicted of a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or(b) the conviction has been quashed or otherwise set aside. …

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 802 visa:·Public interest criterion 4018 in cl.802.225 of Schedule 2 to the Regulations.Michelle GrauMemberATTACHMENT – RELEVANT LAWMigration Regulations 1994802.225If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.802.226The sponsorship mentioned in clause 802.215 has been approved by the Minister and is still in force.Note: Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.4017The 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.4018The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.1.20KB (1)This regulation applies in relation to:(a) an application for any of the following visas:(i) a Child (Migrant) (Class AH) visa;(ii) a Child (Residence) (Class BT) visa;(iii) an Extended Eligibility (Temporary) (Class TK) visa;(iv) a Partner (Temporary) (Class UK) visa;(v) a Prospective Marriage (Temporary) (Class TO) visa;(vi) a Partner (Provisional) (Class UF) visa;if the primary applicant or secondary applicant is under 18 at the time of the application; and(b) an application for the approval of a sponsorship in relation to that application for a visa.Sponsor charged with registrable offence (2) If the sponsor has been charged with a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or(b) the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction.Sponsor convicted of registrable offence (3) Subject to subregulations (4) and (5), if the sponsor has been convicted of a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or(b) the conviction has been quashed or otherwise set aside. …

Ratio Decidendi

Legal Principle Established

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