Kaiapo Nascimento (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, by Kaiapo Nascimento, a national of Brazil. The applicant's mother sponsored his visa application. The core dispute revolved around the applicant's eligibility under PIC 4017, which requires parental consent for a child under 18 to be granted an Australian visa. The Department of Home Affairs had initially requested verification of the father's consent, and later, a court order granting the mother full custody. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to refuse the visa.

The primary legal issue before the AAT was whether the applicant met the requirements of PIC 4017, specifically concerning the parental consent of his father. This involved determining whether the provided court order, which stated the mother had permanent custody, sufficiently satisfied the criterion that the father had not lost his parental rights or that his consent was not required. The Tribunal also considered the authenticity and implications of a court order from Brazil and an email from the applicant's father expressing concerns about the applicant remaining in Australia.

The AAT's reasoning focused on the evidence presented regarding parental consent and custody. Initially, the Department was unable to verify the father's consent and sought further evidence. A court order was provided, but the Department's overseas office advised it did not explicitly state the father had lost his parental rights. The AAT, after several postponements to allow for further evidence, ultimately received confirmation from the Department's office in Brasilia that the Brazilian court order was genuine and that the applicant's mother had full custody, permitting the applicant to reside in Australia permanently. The Tribunal found that this evidence satisfied PIC 4017 for the purpose of clause 802.225.

Consequently, 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.