Al-Baw (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child born in May 2015. The applicant's mother had returned to Jordan for the birth, while the applicant's father remained in Australia. The Department had initially requested evidence to satisfy Public Interest Criterion (PIC) 4017, which requires either the law of the applicant's home country to permit their removal, or for each person who can lawfully determine where the applicant lives to consent to the visa grant, or for the visa grant to be consistent with any Australian child order. The applicant's representative provided a letter from the father dated 22 October 2015, granting permission for the child to depart Jordan with their mother, and later explained that the father could not be contacted due to domestic violence. The Department concluded that PIC 4017 was not satisfied, as the provided permission letter was considered outdated and insufficient for permanent migration.

The primary legal issue before the Tribunal was whether the applicant met the requirements of PIC 4017. Specifically, the Tribunal had to determine if the provided documentation and circumstances satisfied any of the three alternative conditions outlined in PIC 4017, particularly in light of the applicant's father's inability to be contacted and the existence of domestic violence. The Tribunal also considered the relevance of a parenting order from a court, which was awaiting finalisation, and the father's initial permission letter, which did not contain restrictions beyond departure from Jordan.

The Tribunal reasoned that while the Department had concluded PIC 4017 was not met, further consideration was warranted. The Tribunal noted that the applicant's representative had submitted evidence including a letter from the father granting permission for the child to depart Jordan with their mother, and that this letter did not impose further limitations. The Tribunal also acknowledged that a parenting order was pending. Given these circumstances, the Tribunal determined that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the applicant meets the criteria for a Subclass 802 visa, including PIC 4017, for the purposes of clause 802.225 of Schedule 2 to the Regulations.