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

1. 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.

2. 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)

3. 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.

4. 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

5. 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.

6. 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 acting on behalf of the visa applicant. The tribunal finds it has jurisdiction in this matter.

7. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that cl.802.225 was not met because the sponsor had not provided a police clearance from Papua New Guinea and therefore the delegate was not satisfied the sponsor met the requirements of r1.20KB and therefore was not an approved sponsor. As a result the applicant did not meet PIC 4018.

8. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether PIC 4018 is satisfied.

11. 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.

12. 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.

13. 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. 

14. 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.

15. 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.

16. Accordingly, the tribunal is satisfied the applicant meets PIC 4018 in cl. 802.225.

17. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the 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 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 Grau
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    802.225

    If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

    802.226

    The 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.

    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.

    4018

    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.

    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. …