Pettersson (Migration)

[2019] AATA 294

Pettersson (Migration) [2019] AATA 294 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jaseentha Lallitha D'Silva Pettersson
Miss Nicole Emma Pettersson

CASE NUMBER:  1833776

DIBP REFERENCE(S):  CLF2017/43457

MEMBER:P. Maishman

DATE:15 January 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl.835.225 of Schedule 2 to the Regulations

·cl.835.324 of Schedule 2 to the Regulations.

Statement made on 15 January 2019 at 3:11pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) visa – applicant under 18 – public interest considerations – country permits removal of child – interim custody court orders – decision affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cls 802.213, 837.214, 835.324, 835.225 Schedule 4 PIC 4015, 4016, 4017, 4018

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 6 November 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act). Class BU contains three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative).

2. The first-named applicant, Ms Jaseentha Lallitha D'Silva Pettersson, applied for a Remaining Relative (Residence) (BU 835) visa on 15 June 2017 on the basis that she is a remaining relative of her sponsor, Cyril Udhayan D’Silva. The second-named applicant, Miss Nicole Emma Pettersson, made a combined application with the first-named applicant.

3. The delegate refused to grant the visas on the basis that cl.835.225 and cl.835.324 were not met because the delegate was not satisfied that Public Interest Criterion (PIC) 4015, 4016, 4017 or 4018 were met.

4. The applicant appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tommy Pettersson.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   RELEVANT LAW

   Public Interest Criteria 4015 and 4016

7. Clause 835.225 requires that, if a person (in this clause called the additional applicant):

   a.is a member of the family unit of the applicant; and

   b.has not turned 18; and

   c.has made a combined application with the applicant,

   public interest criteria 4015 and 4016 are satisfied in relation to the additional applicants.

8. For the applicants to meet PIC 4015 they must satisfy the Minister that either:

   a.the law of the applicant’s home country permits the removal of the additional applicant;

   b.each person who can lawfully determine where the additional 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 additional applicants.

9. For the applicants to meet PIC 4016 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.

   Public Interest Criteria 4017 and 4018

10. Clause 835.324 requires that, if the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

11. For the applicants to satisfy PIC 4017 they must satisfy the Minister that either:

    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; and

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

12. For the applicants to meet PIC 4018 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.

13. For PIC 4015(b) or 4017(b) to be satisfied, the main question is does the adult supporting the child's application have sole right/responsibility to decide where the child can live. If anyone else has such rights, the preferable form of evidence is a completed Form 1229 (Consent to grant an Australian visa to a child under the age of 18 years). Alternatively, written consent may be in a statutory declaration or the equivalent in the country from all such persons (if they are not visa applicants also).

14. The issue in the present case is whether the applicants satisfy Public Interest Criteria 4015, 4016, 4017 and 4018 as they relate to cl.835.225 and cl. 835.324.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant provided a copy of the delegate’s decision with her application to the Tribunal. The delegate’s decision summarises that the second-named applicant is the daughter of the first-named applicant and was born in July 2002. The Department’s file contains a copy of the second-named applicant’s passport and confirms she was born in July 2002.

16. The Tribunal finds, on the evidence, that the second-named applicant has not turned 18 years old. 

17. The second-named applicant made a combined application with the first-named applicant. The first-named applicant declared that her daughter resides with her 100% of the time and is solely cared for by her. The first-named applicant also declared that her daughter’s father, Mr Tommy Pettersson, resides in Sweden and retains 50% custody of their daughter.

18. The Tribunal considered the information on the Department’s file. The Department’s file contains a copy of an interim judgement concerning the dissolution of the marriage of the applicant and Mr Tommy Pettersson, the child’s father. There is nothing to indicate that the interim judgement was not made final. The interim judgement provides that the parties have joint custody of the child and the applicant has care and control of the child. The judgement also provides that the applicant not bring the child out of Singapore nor permit the child to leave Singapore without prior notification to the child’s father.

19. There is no evidence to suggest that there is any Australian child order in force in relation to the child.

20. The Tribunal is not satisfied that the law of the child’s home country permits the child’s removal from the country. The Tribunal is not satisfied that the grant of the visa would be consistent with any Australian child order in force in relation to the child.

21. A section 376 certificate was attached to the departmental file in respect of information provided to the Department. The information to which the department’s section 376 certificate applies indicates Mr Pettersson does not consent to an Australian visa being granted to the second-named applicant.    

22. On 11 December 2018 the applicant provided Consent to Grant an Australian Visa to a Child under the Age of 18 Years on Form 1229. The form is signed by the first-named visa applicant and by Mr Tommy Pettersson.

23. The Tribunal finds that the second applicant’s father, Mr Tommy Pettersson, is a person who can lawfully determine where the second-named visa applicant is to live.

24. The Tribunal considered the information covered by the Department’s section 376 certificate. The Tribunal explained to the applicant the gist of the information was the Mr Pettersson did not consent to the second-named applicant being granted a visa to come to Australia. The Tribunal took oral evidence from Mr Pettersson. Mr Pettersson agreed that had initially refused to give his consent. Mr Pettersson confirmed that he had discussed the situation in depth with his daughter and now gave consent to her being granted an Australian visa.       

25. On the basis of the oral evidence and the additional documentary evidence before the Tribunal the Tribunal accepts that each person who can lawfully determine where the additional applicants are to live, consent to the grant of the visas.  Accordingly, PIC 4015(b) is met for the purposes of cl.835.225.

26. Relevantly in this case, the second-named applicant must satisfy PIC 4017 at the time of decision. Since the delegate’s decision the applicants have provided the Tribunal with additional evidence in the form of a completed 1229 form signed by both of the second named applicant’s parents and probative documentation about the identity of Mr Pettersson.

27. Based on the evidence above, and consistent with all the evidence on the Tribunal’s file in regards to lawful rights over the second-named applicant, PIC 4015 (b) has been met. Accordingly, PIC 4017 is met for the purposes of cl.835.324.

28. The Tribunal finds that there is no compelling reason to believe that the grant of the visas would not be in the best interest of the applicants.  There is no reason before the Tribunal why the second-named applicant should not reside with their mother in Australia. Therefore the Tribunal is satisfied that public interest criterion 4016 and 4018 is satisfied.

29. As a result the applicants meet cl.835.225 and cl.835.324.

30. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

31. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl.835.225 of Schedule 2 to the Regulations

    ·cl.835.324 of Schedule 2 to the Regulations.

    P. Maishman
    Member