Truong (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a child applicant. The review applicant, presumably the child's parent, sought to have the decision not to grant the visa set aside. The central dispute revolved around whether the visa applicant met Public Interest Criterion (PIC) 4017, a mandatory requirement for applicants under 18 years of age.

The Tribunal was required to determine if the visa applicant satisfied PIC 4017, which necessitates that either the law of the applicant's home country permits their removal, or that each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or that the grant of the visa would be consistent with any Australian child order. The Tribunal had to assess the evidence presented regarding Vietnamese law, the consent of the child's parents, and any relevant Australian child orders.

The Tribunal found that there was insufficient evidence to satisfy subclauses (a) or (c) of PIC 4017. Specifically, no evidence was presented to demonstrate that Vietnamese law permitted the child's removal, nor was there evidence that any Australian child order was in force or that the visa grant would be consistent with such an order. Consequently, the visa applicant sought to rely on subclause (b), which requires the consent of each person who can lawfully determine the child's residence. The Tribunal noted that the divorce order indicated shared rights to the child, and the review applicant had lost communication with the child's father. While the review applicant had made enquiries about the father's whereabouts, including placing newspaper advertisements, the Tribunal was not satisfied that the father was deceased, nor that his consent had been obtained or was otherwise excused.

As the visa applicant failed to satisfy PIC 4017, the Tribunal affirmed the decision not to grant the Subclass 101 visa. No claims were advanced in relation to other visa subclasses within Class AH.