Slewa (Migration)

This matter concerned an application for a Subclass 835 (Remaining Relative) visa. The applicant, who had migrated to Australia with her two children, sought to have the visa application reconsidered by the Tribunal. The core of the dispute revolved around whether the applicant could lawfully determine where her children would live, and whether granting the visa would be consistent with Australian child orders, as required by the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant satisfied the criteria under subclauses 835.225 and 835.324 of Schedule 2 to the Migration Regulations 1994, specifically concerning the requirements of Public Interest Criteria (PIC) 4015 and 4017. These criteria require that either the law of the additional applicant's home country permits their removal, or each person who can lawfully determine where the additional applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order in force.

The Tribunal found that the applicant had provided a court order from the Federal Circuit and Family Court of Australia, made on 22 April 2022, which granted her sole parental responsibility for her two children and ordered that they reside with her. The Tribunal was satisfied that this order meant the applicant was a person who could lawfully determine where the children live, thus satisfying PIC 4015(b) and PIC 4017(b). Furthermore, the Tribunal concluded that the grant of the visa would be consistent with this Australian child order, thereby satisfying PIC 4015(c) and PIC 4017(c).

Consequently, the Tribunal remitted the applications for the Subclass 835 visa for reconsideration by the Minister. The direction was that the first applicant met the criteria under PIC 4015 for the purposes of clause 835.225, and the second and third applicants met the criteria under PIC 4017 for the purposes of clause 835.324.