LIN (Migration)

[2020] AATA 3575

LIN (Migration) [2020] AATA 3575 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Longxiang LIN

CASE NUMBER:  1916867

HOME AFFAIRS REFERENCE(S):          BCC2019/1075918

MEMBER:Michael Ison

DATE:25 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets PIC 4017 and therefore meets that requirement of cl.500.217(2) of Schedule 2 to the Regulations.

Statement made on 25 August 2020 at 2:23pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – consent in writing by both parents to application of applicant under 18 – application originally signed only by father – signed by mother after delegate’s decision – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.217(2), Schedule 4, criterion 4017

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 4 March 2019. The delegate refused to grant the visa on 11 June 2019.

2. The applicant is Master Lin who is 16 year old Chinese national. The applicant arrived in Australia on 26 December 2016, when he was 12 years old, as the holder of a Student (Subclass 500) visa that was valid to 15 March 2019.

3. The applicant’s legal guardian in Australia is his aunt, who is the sister of the applicant’s father. The applicant’s aunt is an Australian citizen. The applicant attended a middle school in Darwin while holding his first Student visa and applied for the second Student visa to attend high school in Darwin.

4. The delegate made the decision on the basis that evidence of both parents’ consent in writing to the grant of the visa for the applicant, their son, was not provided as is required to satisfy public interest criterion 4017 (PIC 4017) of Schedule 4 to the Migration Regulations 1994 (the Regulations) as required by cl.500.217(2) of Schedule 2 to the Regulations.

5. The delegate found:

   The applicant lodged his Student visa application on 04/03/2019. On 23/04/2019 the applicant was requested in writing to give consent from both parents to grant of visa so that the Minister will be satisfied that the law of the applicant’s home country permits the removal of the applicant, 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 in force in relation to the applicant.

   The applicant was provided with 28 days to respond.

   On 28/05/2019, the applicant was once again requested to provide the same documents and was given 7 days to respond with requested information/evidence.

   The birth certificate provided with this application lists both parents [name deleted] and [name deleted]. However, the form 1229 has only been signed by the father [name deleted], consenting to the grant of the visa to the applicant. There is no consent from the other parent to the grant of the visa to the applicant. There is also no evidence to indicate that the father of the applicant has now has sole custody of the applicant.

   Whilst one parent of the applicant, [name deleted], has given consent to the grant of the visa to the applicant, I note that there is no evidence of consent from the other biological parent listed on the Birth certificate provided.

   Therefore, I find that the applicant has not provided evidence to satisfy Public Interest Criterion (PIC) 4017.

6. Clause 500.217(2) of Schedule 2 to the Regulations provides:

   500.217

   (2)If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

7. Public interest criteria 4017 in Schedule 4 of the Regulations provides:

   4017

   The Minister is satisfied of 1 of the following:

   (a)the law of the applicant’s home country permits the removal of the applicant;

   (b)each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

   (c)the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

8. On 21 August 2020 the Tribunal received a copy of the applicant’s mother’s Chinese passport which includes her signature. That signature matches to the signature attributed to the applicant’s mother on the Form 1229 Consent to grant an Australian visa to a child under the age of 18 years. The Form 1229 was signed by the applicant’s father on 6 May 2019 and the applicant’s mother on 20 June 2019, which the Tribunal notes was after the delegate had made their decision to refuse to grant the visa.

9. There is no information before the Tribunal that either the applicant’s father or mother have withdrawn their consent to the applicant being granted another Australian visa. Based on the evidence before the Tribunal, the Tribunal finds the applicant’s mother has consented in writing to the applicant being granted an Australian visa.

10. In light of the new evidence received, the Tribunal finds that the applicant satisfies PIC 4017 and therefore meets that requirement of cl.500.217(2) of Schedule 2 to the Regulations and therefore the matter should be remitted for reconsideration.

11. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the applicant meets PIC 4017 and therefore meets that requirement of cl.500.217(2) of Schedule 2 to the Regulations.

    Michael Ison
    Senior Member