YOO (Migration)

[2017] AATA 1337

YOO (Migration) [2017] AATA 1337 (1 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAEHUN YOO

CASE NUMBER:  1709264

DIBP REFERENCE(S):  BCC2017/1127151

MEMBER:Louise Nicholls

DATE:1 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) visa;

·Public Interest Criterion 4017 for the purposes of cl.600.213(2) of Schedule 2 to the Regulations.

Statement made on 01 August 2017 at 12:16pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Consent for child's migration – Biological parents’ consent given for temporary visa grant

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.213, Public Interest Criterion 4017

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant for review is Jaehun Yoo.  He is a citizen of South Korea and is 12 years of age; his parents are living in South Korea.  He last arrived in Australia on 26 December 2016 as the holder of an Electronic Travel Authority (Subclass 601).  He is currently living in Australia with his aunt and is seeking a further tourist visa with the expressed intention of remaining until 26 June 2017. 

2. He had previously been the holder of a Subclass 571 student visas and last departed Australia on 11 December 2015 and returned on an electronic travel authority granted on 21 December 2016 and which ceased on 26 April 2017. 

3. The visa applicant applied for the visa on 23 March 2017. In the application for a further tourist visa the reason for extension of the visit visa is “waiting for the assessment of school application from New South Wales Department of Education”. As the applicant was under the age of 18 years, the delegate requested further information as to the applicant’s parents’ consent to the grant of the visa, the parent’s passports, the applicant’s birth certificate and a Form completed by a Guardian/Nominee.

4. On 27 April 2017 the delegate of the Minister for Immigration refused to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act) on the basis that the applicant had not provided the requested information and thus did not satisfy cl.600.213 which provides that, amongst other things, the applicant meets Public Interest Criterion 4017.

5. Following the refusal the applicants provided the following documents;

   ·            “Consents to grant an Australian visa to a child under the age of 18 years” (form 1229) completed by the applicant’s mother Jeongyeon Kim and father Jeongyeol Yoo .

   ·            “Undertaking Declaration” (form 1257) made by the applicant’s responsible nominee (the applicant’s aunt, Giyun Kim, on 15 April 2017.

   ·            Statutory declarations made by the applicant’s mother and father on 20 April 2014 [sic].

   ·            Copies of the applicant’s parents’ bio data pages of their respective South Korean passports.

   ·            Certificate of Family Relations issued by the Family Relations Register of the Republic of Korea 14 July 2015 and English translation.

6. This is an application for review of the delegate’s decision and it was made on 27 April 2017. The applicant provided a copy of the delegate’s decision record and documents already given to the Department as set out above.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

9. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

10. The issue in the present case is whether the applicant has met Public Interest Criterion 4017 which is one of the requirements for satisfying cl.600.213 of the Regulations.

11. Subclause 600.213 provides; 

    600.213

    (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

    (2)  If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

12. Public Interest Criterion 4017 provides;

    4017

    The Minister is satisfied of 1 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;

    (c)  the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

    Background

13. The applicant is a 12 year child born in South Korea with Korean nationality. His parents are currently living in South Korea and he is living with an aunt in Sydney.

14. Movements records indicate that the applicant first came to Australia as a visitor on 15 December 2014 and was granted a subclass 571 student visa on 10 February 2014 whilst in Australia. He started attending Concord Primary School. The application form states that his reason for seeking a further stay is because he is awaiting assessment of his school application by the NSW Department of Education.

15. His aunt lives in West Ryde and his parents propose he continue to live with her for the duration of the visit. His parents will send monies to his aunt to provide for his accommodation, food and other necessary expenses.

16. The applicant’s enrolment at Concord Primary School was due to expire on 19 May 2017[1]. No further information was provided as to the applicant’s schooling.

    [1] Tribunal File 1709264 NSW Dept of Education Tax invoice f. 22.

    CONSIDERATION

17. The application was refused because the delegate was not satisfied that the applicant met the requirements in PIC 4017.

18. The applicant has now provided a number of documents which show his date of birth, his South Korean nationality and his identity. They also show the identity of the applicant’s parents and there is evidence of the family relationship between the applicant and his respective parents. He has provided his parents’ consents to the applicant being granted an Australian temporary visa.

19. On the basis of the evidence before it, the Tribunal is satisfied that the applicant’s parents Jeongyeol Yoo and Jeongyeon Kim are his biological parents, that they have parental responsibility for the applicant and that they can lawfully determine where the applicant is to live. The Tribunal is satisfied that they have both have given their consent to the grant of a temporary visa to the applicant.

    DECISION

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) visa;

    · Public Interest Criterion 4017 for the purposes of cl.600.213(2) of Schedule 2 to the Regulations.

    Louise Nicholls
    Senior Member