2016355 (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101, made on behalf of a young boy. The review applicant, the boy's father, sought the visa so his son could live with him in Australia. The boy's parents were divorced, and his mother's whereabouts were unknown. The boy was living in Myanmar under the guardianship of his paternal uncle, who had provided consent for the visa application.

The central legal issue before the Tribunal was whether the visa applicant satisfied Public Interest Criterion (PIC) 4017, which requires that either the laws of the relevant country permit the child's removal to Australia, or that each person who can lawfully determine where the child lives consents to the grant of the visa. The initial refusal of the visa was based on a lack of evidence of the mother's consent or that the father had been granted sole custody.

The Tribunal reasoned that while the mother's consent was not available, and the laws of Myanmar regarding custody were not fully elucidated, the consent of the paternal uncle, who had guardianship of the child, was sufficient. The Tribunal noted that customary law in the region gave custody of children of divorced parents to the father's family. Furthermore, the Tribunal considered the signed consent form from the paternal uncle to be adequate for the purposes of PIC 4017.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration, with a direction that the visa applicant met the relevant criteria.