Moraga Pena (Migration)

[2017] AATA 848

Moraga Pena (Migration) [2017] AATA 848 (12 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Master Isaias Juan Moraga Pena
Miss Daniela Anastasia Moraga Pena

CASE NUMBER:  1601950

DIBP REFERENCE(S):  clf2015/74059

MEMBER:Lisa Lo Piccolo

DATE:12 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Residence) (Class BT) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 802 visa:

·cl.802.225 of Schedule 2 to the Regulations; and

Statement made on 12 May 2017 at 6:18pm

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Public Interest Criterion 4017 – Consent for permanent migration – Law permitting removal of the applicant – Australian child order – Public Interest Criterion 4018 – Best interests of the applicant – Evidence of consent from biological parents

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 802.216, cl 802.225, cl 802.226A

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 Immigration on 8 February 2016 to refuse to grant the applicants Child (Residence) (Class BT) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 30 November 2015. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative).  In this case, claims have only been made in respect of Subclass 802 (Child).

3. The delegate refused to grant the visas on the basis that cl.802.225 was not met because the delegate was not satisfied that public interest criterion 4017 was met.  The delegate was not satisfied that each person who can lawfully determine where the visa applicant is to live consented to the grant of the visa.  In particular, the delegate had concerns as to whether the biological father, Sergio Juan Moraga Torres had given his consent to the visa applicant’s migration to Australia.  A copy of each primary decision record was provided to the Tribunal by the applicants.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

1. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.225.

2. The primary criteria to be satisfied at the time of decision includes a requirement that:

   ·if the visa applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the visa applicant: cl.802.225

3. Public interest criterion 4017 states as follows:

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.

1. The issue in the present case is whether public interest criterion 4017 is satisfied in relation to the visa applicants.

FINDINGS AND REASONS

1. The visa application was made on the basis that the visa applicant is the dependent child of the review applicant, who is the visa applicants’ mother. The review applicant contended that the visa application complied with 4017(b) or 4017(a). The Tribunal considered each of these contentions.

Each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

1. As noted by the delegate, the applicant lodged the visa application on 30 November 2015.  Birth certificates were submitted for each of the applicants which each state that the applicant’s mother is Ana Maria Pena Vergara and the father is Sergio Juan Moraga Torres.  No documents were included in the application demonstrating the sponsor, Ana Maria Pena Vergara has the legal right to determine where the applicants shall live.

2. No evidence was provided that the law of the applicants’ country permits the removal of the applicants.  There was also no evidence showing that the biological father, Mr Torres consented to the grant of an Australian visa to the applicants whether in the form of a Form 1229 or letter signed by the biological father.  And, no evidence of any Australian child order was provided.  Therefore the delegate was not satisfied PIC 4017(a),(b) or (c) were met.

3. In support of the review application, the applicants filed a statutory declaration made by Sergio Juan Moraga Torres on 30 November 2015.  The declaration stated that he consents to the applicants staying in Australia for as long as they need.  A translated copy of the statutory declaration was also provided to the Tribunal.

4. On 21 April 2017, the Tribunal requested further information from the applicants.  The Tribunal noted that whilst the statutory declaration does provide consent for the applicants to stay in Australia for as long as they need, it does not provide consent for them to migrate permanently and be granted permanent visas.  The Tribunal informed the applicants that this was required to satisfy the requirement of PIC 4017 for the purposes of cl.802.225.  The Tribunal requested that the applicants provide the Tribunal with a further statutory declaration or Departmental Form 1229 which specifically states that Mr Torres consents to the applicants being granted permanent visas. 

5. By letter dated 2 May 2017, the Tribunal received an affidavit deposed by Mr Torres on 25 April 2017 which states that he “authorises [the applicants] to be granted definitive permanent residency in Australia”.  Also enclosed was a power of attorney also dated 25 April 2017 in the name of Ana Maria Pena Vergara.  It states that Mr Torres grants the power of attorney ;so that in the name and representation of [Mr Torres] applies for and obtains from the corresponding authorities in that country the permanent residency in Australia for his under aged children [the applicants].” A translated copy of these documents was also provided to the Tribunal.

6. The Tribunal finds based on the certified birth certificate provided that the sponsor, Ana Maria Pena Vergara and Sergio Juan Moraga Torres are the biological parents of the visa applicants who were respectively born on 25 March 2002 and 13 April 2000. Further the Tribunal finds that the mother as the sponsor for the visa applicants also consents to the grant of a visa for them to live in Australia.

7. Based on the documentary evidence, particularly the affidavit dated 25 April 2017 coupled with the power of attorney and the statutory declaration dated 30 November 2017, the Tribunal is also satisfied that Mr Torres consents to the grant of the visa to visa applicants.

8. Therefore the Tribunal is satisfied that each person who can lawfully determine where the applicants are to live consent to the grant of the visa, as required by PIC 4017(b). Therefore the Tribunal is satisfied that the requirement in PIC 4017 is met.

Public Interest Criterion 4018

1. Cl.802.225 also requires that public interest criterion 4018 is satisfied in relation to the applicant. Public Interest Criterion 4018 states:

   The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. 

2. There is no information before the Tribunal that demonstrates that there is any compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicants. Therefore the Tribunal is satisfied that the requirement in public interest criterion 4018 is met.

CONCLUSIONS

1. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl.802.225.

2. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the applications for Child (Residence) (Class BT) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 802 visa:

   ·cl.802.225 of Schedule 2 to the Regulations; and

Lisa Lo Piccolo

Member