CADIZ (Migration)

[2018] AATA 3417

CADIZ (Migration) [2018] AATA 3417 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kathlyne Miralles CADIZ

CASE NUMBER:  1805768

DIBP REFERENCE(S):  CLF2017/40903

MEMBER:Kira Raif

DATE:17 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

·      PIC 4017 for the purpose of cl.445.226 of Schedule 2 to the Regulations

Statement made on 17 July 2018 at 2:53pm

CATCHWORDS
Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependant Child) – Whether each person who can lawfully determine where the applicant is to live consents to the grant of the visa – Where evidence of consent from the applicant’s father was not received by the Department – Consent subsequently submitted to the Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1, Item 1211(4), Schedule 2, cl 445.226, Schedule 4, PIC 4017

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 February 2018 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of the Philippines, born in January 2002. She made the application for the visa on 31 May 2017. The delegate refused to grant the visa on the basis that cl. 445.226 was not met because the delegate was not satisfied the applicant’s father gave consent for the child’s migration for the purpose of Public Interest Criterion (PIC) 4017. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the materials before it.

   Relevant law

4. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations.

5. The issue in the present case is whether the applicant meets Item 4017. It relevantly provides

   The Minister is satisfied of 1 of the following:

   (a)     the law of the applicant’s home country permits the removal of the applicant;

   (b)     each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

   (c)     the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

   Does the applicant meet Item 4017?

6. According to the primary decision record, a copy of which the applicant presented to the Tribunal, the applicant provided with her Visitor visa application form 1229, consent to the child’s migration, signed by her father. However, that consent was for the child’s temporary visit to Australia and not for permanent migration. The delegate attempted to contact the father to verify his consent for the child’s migration but was unable to do so. The applicant indicated that an updated form 1229 would be submitted but this was not done prior to the decision being made.

7. The applicant provided a number of documents to the Tribunal. On 16 March 2018 the applicant provided to the Tribunal a signed consent from Mr Reymar Esteban Cadiz giving permission to the applicant to live in Australia on a permanent basis. The consent is signed before a Notary Public. The applicant’s mother has also written to the Tribunal confirming her consent for the child to live in Australia.

8. Having regard to that information, the Tribunal is satisfied that each person who can lawfully determine where the applicant is to live consents to the grant of the visa. The Tribunal is satisfied the applicant meets PIC 4017(c) and PIC 4017 for the purpose of cl. 445.226.

   Conclusion

9. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

10. The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

    ·            PIC 4017 for the purpose of cl.445.226 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member