Somnam (Migration)

[2020] AATA 3377

Somnam (Migration) [2020] AATA 3377 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pitchanika Somnam

CASE NUMBER:  1924173

DIBP REFERENCE(S):  CLF2018/70427

MEMBER:Nicholas McGowan

DATE:June 5 2020

PLACE OF DECISION:  Melbourne

DECISION:This Tribunal remits the matter to the Minister for further consideration with the finding that at the time of decision the applicant meets public interest criteria 4017 for the purposes of clause 445.226 of Schedule 2 of the Regulations.



Statement made on 05 June 2020 at 12:28pm

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – consent of both parents for the child’s visa – details on Divorce Registration – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 338, 347, 368
Migration Regulations 1994, Schedule 2 cl 445.226; Schedule 4; Public Interest Criteria 4017; r 2.25

Written statement of decision

1. This statement fulfils this Tribunal’s obligations under the Migration Act 1958 (the Act): s.368.

   Evidence to the Secretary

2. As required under the section 368(3)(b) of the Act, this Tribunal will provide to the Secretary a copy of the new documentary evidence on which material findings of facts are based.

   Application for review

3. This is an application lodged 29 August 2019 by the applicant for review of a decision made by a delegate of the Minister for Immigration on 21 August 2019 to refuse to grant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Act. The application was lodged within the timeframe permitted under law, including on the appropriate form and with the requisite fee as required.

4. The delegate refused to grant the Subclass 445 visa on the basis the applicant did not meet public interest criteria 4017 (as specified under clause 445.226).

   Reviewable decision

5. Given the above, this Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act, and that the visa applicant has made a valid application for review under s.347 of the Act.

   The applicable law

6. Clause 445.226 of the Act establishes a time of decision criteria. Relevantly, clause 445.226 requires that where an applicant has not turned 18, the applicant must satisfy public interest criteria 4017 (and 4018).

7. Under public interest criteria 4017, the Minister must be satisfied of 1 on 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.

   Consideration of arguments and evidence

8. On 11 June 2019 the applicant applied for the visa, making a valid application for a Dependent Child visa. The delegate was satisfied of such.

9. The applicant included with the original visa application: a copy of the child’s birth certificate, which stated her mother is Phensri Somnam and father Suphot Muangsuk; a divorce certificate dated May 7 2013 for the applicants parents; and, a Divorce Registration dated May 7 2013 the Addendum of which states ‘Both parents to be divorced cohabitated for 2 years having one child together, Miss Pitchanika Somnan aged 1 year 9 months, who is under the parental power of the female party.’

10. Relevantly to the circumstances in this matter, at the time of the delegate’s refusal decision (21 August 2019), the applicant had provided no evidence that the mother holds either valid court documents that permit the removal of the applicant (child) from Thailand, or evidence the child’s father agrees to the child’s migration to Australia.

11. On 1 June 2020 the applicant provided to this Tribunal a Form 1229 made on June 2 2020. A Form 1228 is a Department of Home Affairs document which specifies a consent given by a parent in respect to an applicant under the age of 18 years. The Form 1229 has been signed by the applicant’s mother Phensri Somnam and father Suphot Muangsuk.

12. Accompanying the Form 1229 Phensri Somnam attached identification in the form of her Thailand passport number AAxxxxx34, and the father Suphot Muangsuk attached identification in the form of his Thai National ID Card number xxxxxxxxxx786. As this Tribunal has no cause to doubt their authenticity, it has accepted them at face value, though notes any verification of their genuineness is a matter for the Minister as part of any further consideration for the grant of the visa.

    Findings

13. Given the above, this Tribunal finds that the two people who can lawfully determine where the (child) applicant is to live are the applicant’s mother Phensri Somnam and father Suphot Muangsuk.

14. It follows that given Phensri Somnam and Suphot Muangsuk have each consented to the applicant (who is under 18 years of age) being granted an Australian visa, the applicant meets public interest criteria 4017(b).

15. As the applicant meets 1 of the subclauses required under public interest criteria 4017 for the grant of the visa, the applicant has satisfied this Tribunal the requirements of public interest criteria 4017 have been met.

16. This Tribunal finds the applicant satisfies public interest criteria 4017 for the purposes of clause 445.226 of the Act.

17. Accordingly, the appropriate course is for this Tribunal to remit the Subclass 445 visa to the Minister for further consideration for the grant of the visa.

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