2017176 (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, subclass 101, made by a visa applicant who had not yet turned 18. The dispute centred on whether the visa applicant met Public Interest Criterion (PIC) 4017, which requires the consent of each person who can lawfully determine where the applicant is to live to the grant of the visa, or alternatively, that the applicant's home country law permits their removal, or that the grant of the visa would be consistent with any Australian child order. The review applicant, presumably a parent, argued that the visa applicant's biological father, Mr [A], was unable to be found, thereby satisfying the criterion.

The primary legal issue before the Tribunal was whether the visa applicant satisfied PIC 4017. Specifically, the Tribunal had to determine if the evidence presented established that each person who could lawfully determine the visa applicant's place of residence consented to the visa grant, or if the other limbs of PIC 4017 were met. The delegate had previously requested DNA testing or other information to confirm paternity due to inconsistencies regarding Mr [A]'s presence at the time of conception, but this was refused by the visa applicant's representative.

The Tribunal reasoned that it was not satisfied that the visa applicant met limb (a) or (c) of PIC 4017, as there was no evidence regarding the law of the applicant's home country permitting removal or consistency with Australian child orders. Consequently, the focus shifted to limb (b), requiring the consent of all persons who can lawfully determine the applicant's residence. The Tribunal found that while the visa applicant's representative claimed Mr [A] was the father and that he and the review applicant did not wish to undergo DNA testing, the delegate had made a finding that the visa applicant was conceived between September and October of a particular year, based on a conception period estimate. This finding, coupled with the delegate's assessment that the review applicant carried the pregnancy to 40 weeks, cast doubt on the claim that Mr [A] was the biological father and that he was unable to be found. The Tribunal concluded that it was not satisfied that the visa applicant's biological father was unable to be found, and therefore, the criterion under PIC 4017(b) was not met.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, subclass 101, as the criteria for its grant were not met. No claims were advanced in respect of other visa subclasses within Class AH.