Barbuto (Migration)

[2019] AATA 3788

Barbuto (Migration) [2019] AATA 3788 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Giovanni Barbuto

VISA APPLICANT:  Ms Feichan Zheng

CASE NUMBER:  1703289

DIBP REFERENCE(S):  OSF2015/069169

MEMBER:Nicholas McGowan

DATE: 01 July 2019

PLACE OF DECISION:  Melbourne

DECISION:

1. The visa applicant meets public interest criteria 4017 for the purposes of clause 445.226 of a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa.

   CATCHWORDS

   MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) visa – applicant failed to meet public interest criteria: PIC 4017 – visa applicant has turned 18 years– public interest criteria 4017 is no longer applicable – decision under review remitted

   LEGISLATION

   Migration Act 1958, s 65

   Migration Regulations 1994, , Schedule 2, cl 445.226

   REASONS AND FINDINGS

2. The visa applicant applied for the visa on 12 October 2015.

3. On 23 January 2017 a delegate of the Minister for Immigration refused to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

4. Relevantly in this case, each person who can lawfully determine where the visa applicant is to live must consent to the grant of the visa. The Minister’s delegate refused to grant the visa on the basis that the visa applicant’s biological father had not consented. Accordingly, the visa applicant (who was aged under 18 years at the time of that decision) failed to meet the corresponding public interest criteria: PIC 4017.

5. As the visa applicant was born on 22 December 2000, at the date of this decision (as reviewed by this tribunal more than two years after the original visa refusal by the Minister’s delegate) the visa applicant is aged 18 years, six months and 10 days.

6. Given the above, at the time of this decision, clause 445.226 which (relevantly) requires the need for the visa applicant to satisfy public interest criteria 4017, is no longer applicable. Put in the alternative, the visa applicant now meets public interest criteria 4017.

7. It follows that the appropriate course of action is to remit the visa application to the Minister for further consideration of a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa.

   Statement made on 01 July 2019 at 1:43pm