Xie (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by a minor born in China. The applicant sought to reside in Australia with their father, who was a Chinese citizen and Australian permanent resident. The dispute arose because, while the applicant's mother had initially provided consent for the child to live with the father in Australia, subsequent information suggested she no longer agreed. The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements of the Migration Act and Regulations, specifically concerning parental consent and the best interests of the child.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria under Schedule 2, clause 802.225 of the Migration Regulations, which incorporates Public Interest Criteria (PIC) 4017 and 4018. PIC 4017 requires that either the law of the applicant's home country permits their removal, or that every person who can lawfully determine where the applicant lives consents to the visa grant, or that the visa grant is consistent with any Australian child order. PIC 4018 mandates that the Minister must be satisfied that there is no compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal reasoned that to satisfy PIC 4017(b), the consent of all persons who can lawfully determine the child's place of residence was required. In this case, the applicant's mother, as a parent, held such a right under Chinese law. Despite her initial declaration of consent, the Tribunal found that evidence indicated she had withdrawn this consent. Furthermore, the Tribunal considered the applicant's young age and impressionable state, noting that a long-term separation from her mother, coupled with her father's single status, could have an adverse emotional impact, thus potentially not being in the child's best interests under PIC 4018. Applying the principles from *Re Drake*, the Tribunal affirmed the decision under review, finding that the applicant had not met the necessary visa requirements.