Kweon (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa (Subclass 820) made by Ms Kweon, who was seeking to migrate to Australia with her children. The primary issue before the Tribunal concerned whether Ms Kweon could satisfy Public Interest Criteria (PIC) 4015 and 4017 of the Migration Regulations 1994, which relate to the authority of secondary visa applicants, in this case, her children, to migrate permanently to Australia.

The Tribunal was required to determine whether the law of the children's home country, South Korea, permitted their removal, or alternatively, whether each person with the lawful authority to determine where the children should live had consented to the grant of the visa. Ms Kweon had previously moved to Australia with her children and subsequently remarried an Australian sponsor. The Tribunal noted that the children were under the age of majority at the time of the application and decision.

The Tribunal's reasoning focused on the lack of documentary evidence to satisfy the PIC requirements. While Ms Kweon asserted that her former husband had consented to the children's permanent removal from South Korea, and that she had obtained South Korean passports for them, she was unable to produce any formal documentation from South Korean authorities confirming this consent or permitting their permanent departure. The Tribunal emphasised that it required documentary evidence, not merely assurances, to be satisfied of the legal requirements.

Consequently, the Tribunal remitted the applications for the Partner (Temporary) (Class UK) visas to the Minister for reconsideration. The Tribunal directed that Ms Kweon met certain specified criteria for a Subclass 820 visa, indicating that the remittal was to allow for further consideration of the remaining criteria, particularly those relating to the children's authority to migrate.