Pettersson (Migration)

This matter concerned an appeal to the Migration Review Tribunal by an applicant seeking a Subclass 835 (Remaining Relative) visa for herself and her daughter, the second-named applicant. The primary dispute revolved around whether the applicants satisfied certain public interest criteria, specifically those relating to the welfare and consent of a child under 18 years of age.

The legal issues before the Tribunal were whether the second-named applicant, who was under 18, met the requirements of Public Interest Criteria 4015, 4016, 4017, and 4018, as they applied to clauses 835.225 and 835.324 of the relevant regulations. This involved determining if the country of the child's origin permitted her removal, if any Australian child orders were in force, and crucially, whether the child's father, who retained joint custody, consented to the grant of the visa.

The Tribunal found that the second-named applicant had not yet turned 18. While an interim custody order indicated joint custody with the applicant having care and control, and a prohibition on removing the child from Singapore without the father's notification, there was no evidence of any Australian child orders. Initially, information on the Department's file suggested the father did not consent to the visa. However, the Tribunal took oral evidence from the father, Mr. Pettersson, who confirmed he had initially refused consent but, after discussing the matter with his daughter, now consented to her being granted an Australian visa. The Tribunal was satisfied that Mr. Pettersson was a person who could lawfully determine where the child should live and that he now consented.

Consequently, the Tribunal remitted the applications for the Other Family (Residence) (Class BU) visas to the Minister for reconsideration. The remittal was with the direction that the first-named applicant met the criteria specified in clauses 835.225 and 835.324 of Schedule 2 to the Regulations.