Taru (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a minor applicant. The dispute centred on whether the applicant met Public Interest Criteria (PIC) 4017 and 4018, which are prerequisites for the visa. The delegate who initially refused the visa was not satisfied that the law of the applicant's home country permitted their removal, nor that the applicant's biological father consented to the visa grant, nor that any Australian child order was in force.

The primary legal issue before the Tribunal was to determine if the applicant satisfied PIC 4017. This criterion requires the Minister to be satisfied that either the law of the applicant's home country permits their removal, or that every person with the lawful right to determine the applicant's residence consents to the visa grant, or that granting the visa would be consistent with any Australian child order in force. The Tribunal also considered whether compelling or compassionate circumstances warranted an exception under subclause 5(b)(i).

The Tribunal's reasoning focused on a Federal Circuit Court order dated 6 November 2018, which was provided by the applicant's mother. This order, made by consent between the applicant's mother and biological father, granted the mother sole parental responsibility for major long-term decisions concerning the applicant, including decisions about their living arrangements. The order also restrained the father from removing the applicant from the mother's care without a court order and prohibited contact unless requested in writing by the mother. Based on this order, the Tribunal was satisfied that the applicant met PIC 4017 under sub-section C, as the grant of the visa would be consistent with an Australian child order.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with the direction that the applicant meets the criteria specified in cl.802.225 of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the visa.