Mustafa (Migration)

[2021] AATA 3793

Mustafa (Migration) [2021] AATA 3793 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hind Aadil Osman Mustafa

VISA APPLICANT:  Master Mohamed Nazar Mohamed Osman

CASE NUMBER:  2105067

HOME AFFAIRS REFERENCE(S):          2018006413

MEMBER:Kira Raif

DATE:9 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.226 of Schedule 2 to the Regulations

Statement made on 09 September 2021 at 1:30pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – live consents of the parents – visa applicant past 18 years at time of decision – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.226; Schedule 4, Public Interest Criterion (PIC) 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 on 4 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant was born in May 2003. He applied for the visa on 5 March 2018. The delegate refused to grant the visa on the basis that cl 101.226 was not met because the visa applicant did not meet Public Interest Criterion (PIC) 4017. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.226, which requires the visa applicant, who has not turned 18, to meet PIC 4017. It relevantly provides

   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.

   Does the visa applicant meet PIC 4017?

6. As noted above, the visa applicant was born in May 2003. At the time of this decision, the visa applicant is over 18 years of age. As the visa applicant is no longer a minor, the Tribunal finds that  PIC 4017 and PIC 4018 no longer apply to the visa applicant. As such, the Tribunal is satisfied the visa applicant meets cl. 101.226.

7. The Tribunal notes that although the delegate considered that the father’s consent presented with the primary application constituted a bogus document, no decision was made in relation to PIC 4020. The Tribunal thus does not make any findings in relation to that provision.

   Conclusion

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

   DECISION

9. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

   ·cl 101.226 of Schedule 2 to the Regulations

   Kira Raif
   Senior Member