Hsu (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 836 (Carer) visa. The applicant, who was under 18 at the time of the initial decision, had been refused the visa by the Department because the delegate was not satisfied that the applicant met Public Interest Criterion 4017, which requires consent from both parents for an applicant under 18. However, the applicant had since turned 18.

The primary legal issue before the Tribunal was whether the applicant still needed to satisfy Public Interest Criterion 4017, given that they had reached the age of majority. The Tribunal was required to determine if the criterion, which is a "time of decision" criterion, remained relevant to the applicant's eligibility for the visa.

The Tribunal reasoned that clause 802.225 of Schedule 2 to the Migration Regulations provides that if an applicant has not turned 18, they must satisfy PIC 4017 and 4018. However, because the applicant had now turned 18, they were no longer required to satisfy these specific Public Interest Criteria. Consequently, the Tribunal found that the applicant now met the criteria in clause 802.225.

The Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets the criteria in clause 802.225 of Schedule 2 to the Regulations, to allow for consideration of the remaining visa criteria.