Gupta (Migration)

[2021] AATA 2572

Gupta (Migration) [2021] AATA 2572 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Aadya Gupta

CASE NUMBER:  2014468

HOME AFFAIRS REFERENCE(S):          CLF2019/20602

MEMBER:Kira Raif

DATE:20 May 2021

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:

·Item 4017 for the purpose of cl.802.225 of Schedule 2 to the Regulations

Statement made on 20 May 2021 at 1:25pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – subclass 802 – hearing not required – order made by the Federal Circuit Court of Australia - applicant to live with her father in Australia – father to have sole parental responsibility for the child – decision under review remitted

LEGISLATION
Family Law Act 1975
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 802.225, 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 Home Affairs on 23 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in September 2005. The applicant applied for the visa on 24 April 2019. The delegate refused to grant the visa on the basis that cl.802.225 was not met because the delegate was not satisfied the applicant met 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 material before it. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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?

5. There is no evidence before the Tribunal that the law of the applicant’s home country permits the removal of the applicant. There is no evidence that each person who can lawfully determine where the applicant is to live consents to the grant of the visa. The Tribunal is not satisfied the applicant meets Item 4017(a) and (b).

6. The applicant seeks to meet Item 4017(c). The applicant presented to the Tribunal a copy of the Order made by the Federal Circuit Court of Australia in February 2021 under the Family Law Act 1975, which allows the applicant to live with her father in Australia and for the father to have sole parental responsibility for the child. The Tribunal is satisfied that this Order is an Australian child order. As it allows for the child to live with the sponsor and in Australia, the Tribunal is satisfied that the grant of the visa would be consistent with an Australian child order in force in relation to the applicant. The applicant thus meets PIC 4017(c).

   DECISION

7. 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:

   ·PIOC 4017 for the purpose of cl.802.225 of Schedule 2 to the Regulations

   Kira Raif
   Senior Member