Brazil (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600, by a child under the age of 18. The applicant sought to satisfy the requirements of Public Interest Criterion (PIC) 4017, which mandates that either the law of the applicant's home country permits their removal, or each person who can lawfully determine where the applicant lives consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order. The Tribunal was not satisfied that the first or third of these conditions were met.

The central issue before the Tribunal was whether the applicant met PIC 4017(b), requiring the consent of all persons with the legal right to determine the child's residence. The applicant's mother, Charlotte Sarah Brazil, had changed the child's name to reflect her current surname, and a Form 1229 indicated consent from both David Brazil and Charlotte Sarah Brazil. However, the applicant's biological father, Frank Apsey Roberts, had not provided consent, nor had Mrs Brazil demonstrated full custody.

The Tribunal noted that the applicant's representative subsequently provided information indicating that David Brazil intended to adopt the applicant. This included correspondence from an adoption agency outlining the criteria for step-parent adoption, which requires the prospective adoptive parent to be over 21, the birth parent over 18, and to have lived with the child as part of a family for at least six months. Crucially, all adoption applications must be made to the court before the child's 18th birthday. As the applicant was unable to meet any of the alternative requirements under PIC 4017, the Tribunal affirmed the decision not to grant the visa.