1712985 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 101 (Child) visa. The applicant, the biological child of the sponsor, sought to have the decision not to grant the visa reviewed. The sponsor, an Australian permanent resident, had established a parent-child relationship with the applicant, supported by a birth certificate and DNA testing, and had provided a death certificate for the applicant's father.

The primary legal issue before the Tribunal was whether the sponsorship requirements under clause 101.212 of the Migration Regulations 1994 had been approved by the Minister and remained in force at the time of the decision, as required by clause 101.222. This involved considering the validity of a Regulation 375A certificate, which restricted the disclosure of certain information from the Department's file, and determining the weight to be given to that information. The Tribunal also had to assess whether the sponsor had complied with a request for a police check, as contemplated by subregulation 1.20KB(12).

The Tribunal found the Regulation 375A certificate to be valid and considered information within it, including Departmental records indicating the sponsor and Mr [A] resided at the same address. The Tribunal noted that the sponsor had been granted her own permanent visa based on a relationship with Mr [B], but subsequently gave birth to the applicant with Mr [A] while still residing with Mr [B]. Crucially, the Tribunal found that the sponsor failed to provide a police check within a reasonable time as requested by the Department. Applying subregulation 1.20KB(12), which permits refusal of sponsorship if a requested police check is not provided within a reasonable time, the Tribunal concluded that the sponsorship requirements were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 101 (Child) visa, as the criteria for the visa were not met. No claims were advanced regarding other visa subclasses within Class AH.