Kingsle (Migration)

This matter concerned an appeal by Mr Kingsle against a decision by a delegate to refuse him a Subclass 189 (Skilled Independent) visa. The primary reason for the delegate's refusal was the applicant's failure to provide evidence of custodial arrangements, as required by clause 189.312(3) of Schedule 2 to the Regulations, to demonstrate that Public Interest Criterion 4017 was met. At the time of the delegate's decision, Mr Kingsle was 17 years old.

The Tribunal was required to determine whether the delegate's basis for refusal remained relevant given the passage of time and the applicant's current age of 20 years. The Tribunal also considered its powers on review, specifically its ability to affirm, vary, or remit the decision for reconsideration. The Tribunal noted that its powers under section 349(2) of the Migration Act 1958 (Cth) allowed it to stand in the shoes of the primary decision-maker, as confirmed by the High Court in *MIAC v SZKTI* [2009] HCA 30.

The Tribunal reasoned that clause 189.312(3) of Schedule 2 to the Regulations imposed a "time of decision" requirement. Unlike clause 189.312(2), which specifically referred to an applicant who had turned 18 at the time of application, clause 189.312(3) lacked such a temporal qualification. Consequently, the Tribunal concluded that this criterion was no longer relevant to Mr Kingsle, as he was now 20 years old, and therefore evidence of custodial arrangements was no longer required.

Given that the basis for the original refusal was no longer relevant, the Tribunal remitted the application for reconsideration. The Tribunal directed that the applicant be considered to meet the criteria in clause 189.313 of Schedule 2 to the Regulations, allowing for prompt consideration of the remaining visa requirements.