Khan (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, brought by a visa applicant who had not yet turned 18 at the time of the decision. The review applicant, who was accepted as the visa applicant's biological father, sought the grant of the visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the visa applicant met Public Interest Criteria (PIC) 4017 and 4018, as stipulated by clause 101.226 of the Migration Regulations.

The primary legal issue before the Tribunal was whether the visa applicant satisfied PIC 4017. This criterion requires the Minister to be satisfied that either the law of the applicant's home country permits their removal, or each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order. The Tribunal found no evidence to satisfy the first or third limbs of PIC 4017. Therefore, the focus shifted to the second limb, which necessitated an assessment of whether any other person, beyond the biological father, could lawfully determine the visa applicant's place of residence and, if so, whether that person consented to the visa grant.

The Tribunal considered the unique circumstances of the case, involving a claimed surrogacy arrangement where the review applicant's sperm was used with an egg from an anonymous donor. While accepting the review applicant as the biological father and acknowledging his consent, the Tribunal had to determine if the surrogacy arrangement itself created another individual with the legal right to determine the visa applicant's residence. The Tribunal noted that the delegate's refusal had focused on the absence of court orders between the commissioning parents and the applicant, but the Tribunal considered the core issue to be whether the surrogacy arrangements meant another person held rights under PIC 4017(b). The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the visa applicant meets clause 101.226.