Taru (Migration)

[2020] AATA 1898

Taru (Migration) [2020] AATA 1898 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeremiah Taru

CASE NUMBER:  1822611

HOME AFFAIRS REFERENCE(S):          CLF2017/24081

MEMBER:Justin Owen

DATE:18 May 2020

PLACE OF DECISION:  Sydney

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:

·cl.802.225 of Schedule 2 to the Regulations

Statement made on 18 May 2020 at 9:08am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – law of home country permitting removal of child – consent of any person responsible for child – Federal Circuit Court order granting applicant sole parental responsibility – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.225, Schedule 4, criterion 4017(C)
Family Law Act 1975 (Cth), ss 68B, 114

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 18 July 2018 to refuse 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 22 March 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

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.

4. The delegate refused to grant the visa on the basis that cl.802.225 was not met because at the time of decision Public Interest Criteria 4017 was not satisfied in relation to the applicant. 

5. The applicant being 15 years of age is a minor.  The Tribunal is satisfied that an agency relationship exists between the applicant and his mother. The applicant’s mother Mrs Lenita Taru appeared before the Tribunal as the applicant’s agent on 6 May 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, being under the age of 18 at the time of decision, satisfies Public Interest Criteria (PIC) 4017 and 4018: cl.802.225

8. PIC4017 states that the Minister must be satisfied of one of 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; or

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

9. The delegate found in refusing the visa application there was no evidence that the law of Papua New Guinea that permitted the removal of the applicant; that he was not satisfied on the evidence before him that the applicant’s biological father consented to the grant of the visa; and there no evidence before him of any Australian child order.

10. The delegate was also not satisfied the applicant had put forward compelling or compassionate circumstances so subclause 5(b)(i) should not apply to the applicant. 

11. On 29 April 2020 the applicant provided the Tribunal with Final Orders from the Federal Circuit Court dated 6 November 2018 between the applicant’s mother Mrs Lenita Taru and his biological father Mr Wesley Taru. 

12. The Court Order states that by consent it was ordered that the applicant’s mother Mrs Taru is to have sole parental responsibility for the major long-term decisions in relation to the applicant including but not limited to the applicant’s education; the applicant’s religions and cultural upbringing; the applicant’s health; and changes to the applicant’s living arrangements that make it significantly more difficult for the applicant to spend time with his biological father.

13. The Court Order states that the applicant is to live with his mother Mrs Taru at all times.

14. The Court order states that the applicant’s biological father, his servants or agents are restrained from removing or causing the removal of the applicant from the care of his mother, or from any place at which Mrs Taru places him in the care of without an Order of the Court to do so.

15. The Court Order also states unless requested in writing by the applicant’s mother Mrs Taru, that the applicant’s biological father is prohibited and restrained from spending time with or attempting to contact or approach the applicant or attend a day at the applicant’s day care or school.  This is for the personal protection of the applicant and his mother Mrs Yoke and pursuant to s.68B and s.114 of the Family Law Act 1975 (Cth).    

16. The Tribunal discussed the Court Order with Mrs Taru at the hearing.  Based on the Court Order of the Federal Circuit Court of 6 November 2018, the Tribunal is satisfied that the applicant meets PIC4017 through sub-section C: The grant of the visa would be consistent with any Australian child order in force in relation to the applicant. 

17. Accordingly, cl.802.225 is met. 

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

    DECISION

19. 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:

    ·cl.802.225 of Schedule 2 to the Regulations

    Justin Owen
    Senior Member