Haynes (Migration)

[2020] AATA 3293

Haynes (Migration) [2020] AATA 3293 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Cherine Haynes
Master Kirei Luka Chaun Haynes-Macabee

CASE NUMBER:  2006186

HOME AFFAIRS REFERENCE(S):          BCC2017/4420182

MEMBER:P. Maishman

DATE:21 May 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.225 of Schedule 2 to the Regulations

In relation to the secondary applicant, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 21 May 2020 at 5:32pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – additional applicant – dependent child of primary applicant – permission to migrate by law of home country – parents’ consent – best interest of child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.12; Schedule 2, cl 820.225; Schedule 4, PIC 4015, 4016

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 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the primary applicant) applied for the visa on 23 November 2017 on the basis of her relationship with her sponsor, Mr Lee Martin. The second named applicant is the child of the primary applicant and an additional applicant to the visa. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the primary applicant did not satisfy cl.820.225 because Public Interest Criteria (PIC) 4015 was not satisfied.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant gave the Tribunal a copy of the delegate’s decision record. The primary applicant claims to have been in a de facto relationship with the sponsor since October 2013. The second named applicant is a dependent child of the primary applicant and was included on the primary applicant’s visa application. The delegate found the second named applicant is a British citizen whose home country is the United Kingdom, and that he is usually resident in Singapore. The delegate was not satisfied the laws of the United Kingdom or Singapore permitted the migration of the second named applicant to Australia; or that each person who could lawfully determine where the second named applicant was to live, consented to the grant of the visa.

8. The Tribunal received additional evidence in the form of a completed and signed form 1229; a copy of the biological father’s passport; and a copy of the second named applicant’s birth certificate.

9. The Tribunal notes the delegate has not made an assessment of whether the primary applicant meets the criteria to be considered the spouse or de facto partner of the sponsor. Having regard to the President’s Direction - Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate.

10. Cl. 820.225 of the Regulations requires PIC 4015 and 4016 to be satisfied by a person (the additional applicant) who is a member of the primary applicant’s family unit; who hasn’t turned 18; and who made a combined application with the applicant, at the time of decision.

11. Regulation 1.12 defines the phrase ‘member of the family unit’.

12. The birth certificate received by the Tribunal shows the second named applicant was born in June 2006. The primary applicant is his mother and Jean-Pierre Martin McAbee is his birth father.

13. The Tribunal finds the second named applicant is the child of the primary visa applicant and has not turned 18. The second named applicant is a member of the family unit, as defined in r.1.12, of the primary visa applicant. The second named applicant made a combined application with the primary visa applicant.  

14. PIC 4015 requires the delegate to be satisfied either that the law of the additional applicant's home country permits their removal; or that each person who could lawfully determine where the additional applicant is to live has consented to the grant of the visa;  or that the grant of the visa is consistent with any Australian child order in force in relation to the additional applicant.

15. PIC 4016 requires the delegate to be satisfied there is no compelling reason to believe that the grant of not being the best interests of the additional.

16. The issue in the present case is whether PIC 4015 and PIC 4016 are satisfied in respect of the second named applicant.

17. The Tribunal received a Form 1229 giving consent to the grant of an Australian visa to a child under the age of 18 years. The second named applicant is listed as the child for whom consent is to be given for the grant of an Australian visa. The form is signed by the primary visa applicant and the father of the second named applicant, as listed on his birth certificate. The Tribunal accepts the submission that the passport of the second named applicant’s father could not be certified given quarantine conditions common during the current Covid 19 pandemic. Subject to any future authentication, the Tribunal accepts the consent form has been signed by the father of the second named applicant is verified by his passport. The second named applicant is the additional applicant for the purposes of PIC 4015 and PIC 4016.

18. There is no evidence before the Tribunal that any person, other than the additional applicant’s parents, can lawfully determine where the second named applicant is to live. The Tribunal finds that the second named applicant’s parents can lawfully determine where he is to live and have consented to the grant of an Australian visa.

19. There is no evidence before the Tribunal that there is a compelling reason to believe that the grant of the visa would not be best interests of the additional applicant.

20. The Tribunal is satisfied that the requirements of PIC 4015 and PIC 4016 are met.

21. Therefore the applicant meets cl.820.225. 

22. In the circumstances the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

23. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.225 of Schedule 2 to the Regulations

    ·In relation to the secondary applicant, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

    P. Maishman
    Member