2004856 (Migration)

The Administrative Appeals Tribunal considered a decision concerning applications for Child (Migrant) (Class AH) visas, specifically Subclass 101 (Child) visas. The dispute centred on whether the visa applicants, who were under 18 at the time of the decision, satisfied Public Interest Criterion (PIC) 4017, which requires either the law of the applicant's home country to permit their removal, or for every person who can lawfully determine where the applicant is to live to consent to the visa grant. The applicants sought to satisfy PIC 4017(b) by demonstrating that the consent of the visa applicants' biological father, who was presumed to be alive, had been obtained.

The primary legal issue before the Tribunal was whether the visa applicants met the requirements of PIC 4017(b). This involved determining whether the biological father, who was missing, was alive and whether sufficient inquiries had been made to ascertain his consent or to establish that he was deceased. The Tribunal also considered whether the applicants satisfied PIC 4017(a) or (c), finding no evidence to support these criteria.

The Tribunal's reasoning focused on the adequacy of the inquiries made regarding the biological father's whereabouts and status. While a Letter of Involvement from the Australian Red Cross' Restoring Family Links Service indicated that the father had last been in contact with his own father in 2012 and was last seen in an IDP camp in 2010, the Red Cross stated that no further searches were possible and the case would be closed. The Tribunal noted that the common law presumption of death had not been overcome by the inquiries made. Consequently, the Tribunal was not satisfied that the biological father's consent had been obtained, nor that he was deceased.

The Tribunal affirmed the decisions not to grant the visa applicants the Child (Migrant) (Class AH) visas, as the criteria, particularly PIC 4017(b), were not met.