CHAN (MIGRATION)

[2017] AATA 2991

CHAN (MIGRATION) [2017] AATA 2991 (5 DECEMBER 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHUN YEUNG CHAN

CASE NUMBER:  1701692

DIBP REFERENCE(S):  CLF2016/31517

MEMBER:Kira Raif

DATE:5 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.225 of Schedule 2 to the Regulations

Statement made on 05 December 2017 at 7:21am

CATCHWORDS

Migration  – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Father’s consent to child’s migration – Signature not confirmed – No contact with father for many years – Applicant  now over 18 – Public Interest Criterion 4017 no longer applies

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 802.225, Public Interest Criterion 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 16 January 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of China (HKSAR) born in December 1999. He applied to the Department of Immigration for the visa on 23 May 2016. The delegate refused to grant the visa on the basis that cl.802.225 was not met because the delegate found that the visa applicant did not meet Public Interest Criterion (PIC) 4017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child). The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (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 his application form 1229, consent to the child’s migration, signed by his father. The delegate could not confirm the father’s signature on the form because there was no signature on the ID card, which had in any case expired. The delegate attempted to make contact with the father to confirm his identity but was not able to do so and the applicant also confirmed he could not contact his father. As such, the delegate was not satisfied the father had given consent for the applicant’s migration to Australia.

7. In oral evidence, the applicant explained to the Tribunal that they had no contact with his father for many years and that they would be unable to find him.

8. The visa applicant was born on 5 December 1999 and at the time of this decision, has turned 18. As the applicant has turned 18, PIC 4017 no longer applies to him. The Tribunal finds that the applicant meets cl. 802.225.  

   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 a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.225 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member