Jiang (Migration)

This matter concerned an appeal by the applicant, Ms Jiang, against a decision of the Administrative Appeals Tribunal (AAT) regarding her application for a Child (Migrant) (Class AH) subclass 101 visa. The AAT had refused to grant the visa, a decision Ms Jiang sought to have set aside.

The primary legal issue before the Federal Court was whether the AAT had erred in its assessment of the parental consent requirements for the subclass 101 visa, particularly in circumstances where the biological father was deceased and the mother had been granted sole parental responsibility by a court. The court was required to determine if the AAT had correctly applied the relevant provisions of the *Migration Regulations 1994* (Cth) and the Migration Act 1958 (Cth) in relation to parental consent.

Justice McGowan found that the AAT had made an error of law. His Honour reasoned that the AAT had failed to properly consider the effect of the Family Court orders granting the mother sole parental responsibility. The court held that in such circumstances, where a parent has been granted sole parental responsibility by a court, the consent of that parent alone is sufficient for the purposes of the visa application, notwithstanding the death of the other biological parent. The AAT's failure to recognise this vitiated its decision.

Consequently, the Federal Court ordered that the AAT's decision be set aside and remitted the matter back to the AAT for redetermination according to law.