Sedibe (Migration)

[2021] AATA 2673

Sedibe (Migration) [2021] AATA 2673 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Moronai Sedibe

CASE NUMBER:  1824247

HOME AFFAIRS REFERENCE(S):          CLF2017/64290

MEMBER:Andrew McLean Williams

DATE:17 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·Public Interest Criteria 4017

Statement made on 17 June 2021 at 2:09pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – requirements of Public Interest Criteria 4017 met – mother of the applicant has permanent legal custody of the child – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 802.225, Public Interest Criteria 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 1 August 2018 refusing to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 September 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative).

3. 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, which requires that public interest criteria (‘PIC’) 4017 be satisfied.

4. PIC4017 requires that there be evidence that the laws of the applicant’s home country permit either: the removal of the applicant; that each person who can lawfully determine where the applicant is to live has consented to the grant of the visa; or that the grant of the visa would be consistent with any Australian child order in force in relation to the applicant 

5. The delegate refused to grant the visa on the basis that cl.802.225 was not met, because there was no evidence before the delegate that the father of the applicant child had consented to the applicant relocating to Australia.

6. The applicant appeared before the Tribunal on 17 June 2021 to give evidence and present arguments.

7. The applicant was represented in relation to the review by Mr Nick Taft of Farrellys Lawyers, Cairns.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the Applicant meets the requirements of PIC4017 and as part of the requirements of cl. 802.225.

10. Prior to the hearing, Mr Taft had arranged for a copy of sealed orders made by the Papua New Guinea National Court of Justice at Waigani dated 10 August 2018 to be filed in the Tribunal (‘orders’). 

11. These orders confer Carmel Horowa Agiwa, as the mother of the applicant, with permanent legal custody of the child Moronai Sedibe (‘findings’).

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

    DECISION

13. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·Public Interest Criteria 4017

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)       is dependent on that person; or

    (ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …