Thapa (Migration)

This matter concerned an appeal by the review applicant against a decision of the delegate of the Department of Home Affairs to refuse a Child (Migrant) (Class AH) visa (subclass 101) for the applicant's son. The delegate had refused the visa on the basis that the applicant had not satisfied subclause 4017 of the Migration Regulations 1994, which relates to the legal permission for a child's removal from their home country. The review applicant sought to have this decision set aside by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of subclause 4017 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant could demonstrate that the laws of Nepal permitted the child's removal to Australia (subclause 4017(a)), that the grant of the visa would be consistent with any Australian child order (subclause 4017(c)), and whether the applicant had provided sufficient evidence to satisfy subclause 4017(b) concerning parental responsibility.

The Tribunal noted that while new evidence, including a Guardianship Verification Certificate from a Nepali court, had been provided, it did not establish that Nepali law permitted the child's removal from Nepal. The certificate indicated that the applicant's father had been granted guardianship for the child's welfare, but not for the purpose of removal. Furthermore, there was no evidence of any Australian child order. The Tribunal also considered the applicant's sponsorship form, which indicated he did not have the sole legal right to determine where the child lived or to remove him from Nepal. The form identified the child's great uncle and aunt as having cared for him, suggesting a relinquishment of guardianship by the parents.

The Tribunal found that subclauses 4017(a) and 4017(c) were not met. The Tribunal remitted the decision to the delegate for reconsideration, with a direction that the delegate should determine whether subclause 4017(b) was satisfied, having regard to the evidence presented.