Akber (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, brought by an adoptive mother (the review applicant) for her son (the visa applicant), who was abandoned in Pakistan. The central dispute revolved around whether the visa applicant met Public Interest Criterion (PIC) 4017, which requires the Minister to be satisfied that either the law of the applicant's home country permits their removal, or that all persons who can lawfully determine where the applicant lives consent to the visa grant, or that the grant would be consistent with any Australian child order. The decision was made by Michelle Grau, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicant satisfied PIC 4017, specifically concerning the law of Pakistan permitting the removal of the child, and whether the grant of the visa would be in the best interests of the child. The Tribunal also considered whether the applicant met other relevant criteria, including sponsorship requirements, noting that a previous tribunal had already found the applicant met criteria related to adoption and family unit membership.

The Tribunal's reasoning focused on interpreting the Pakistani court orders in light of PIC 4017(a). Initially, the Tribunal had concerns that a 2016 court order permitting the child to travel to Australia for higher education might imply only a temporary removal. However, upon receiving further court orders in 2016 and 2017, which explicitly referred to living in Australia and contemplated migration, the Tribunal was satisfied that Pakistani law permitted the child's removal for migration purposes. The Tribunal found these orders, in conjunction with the application for them, demonstrated consent for the child to move and live permanently in Australia with the review applicant, who was the appointed guardian. The Tribunal also considered country information regarding documentation required to leave Pakistan and concluded the court orders provided sufficient proof of parental responsibility and consent. Furthermore, the Tribunal found no compelling reason to believe the visa grant would not be in the best interests of the child, given his long-term care by the review applicant.

The Tribunal remitted the application for reconsideration with a direction that the visa applicant met cl.101.212, cl.101.222, and cl.101.226 of Schedule 2 to the Regulations.