Gupta (Migration)

The applicant sought review of a decision concerning an application for a Child (Residence) (Class BT) visa, subclass 802. The dispute centred on whether the applicant met Particular Interpretative Criterion (PIC) 4017(c) of the Migration Regulations 1994. The decision under review was made by the Federal Circuit Court of Australia.

The primary legal issue before the Tribunal was whether an Order made by the Federal Circuit Court of Australia, which stipulated that the applicant live with her father in Australia and that the father have sole parental responsibility for the child, constituted an "Australian child order" for the purposes of PIC 4017(c). The Tribunal was required to determine if this Order satisfied the criteria for the grant of the visa.

The Tribunal reasoned that the Federal Circuit Court Order was indeed an Australian child order. It found that because the Order permitted the child to live with the sponsor and reside in Australia, the grant of the visa would be consistent with the existing Australian child order. Consequently, the Tribunal was satisfied that the applicant met PIC 4017(c).

The Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration. The direction was that the applicant meets the criteria for a Subclass 802 visa, specifically PIC 4017 for the purpose of clause 802.225 of Schedule 2 to the Regulations.