YOO (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, made by a 12-year-old child. The applicant, who was born in South Korea and held Korean nationality, was residing with an aunt in Sydney while his parents remained in South Korea. The dispute arose because the visa delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4017, a requirement for the visa. The decision was made by Senior Member Louise Nicholls of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied PIC 4017, which requires the Minister to be satisfied that either the applicant's home country law permits their removal, or each person who can lawfully determine where the applicant is to live consents to the visa grant, or the visa grant would be consistent with any Australian child order. As the applicant was under 18, satisfying PIC 4017 was a prerequisite for meeting clause 600.213(2) of the Migration Regulations 1994.

The Tribunal reasoned that the applicant's parents, Jeongyeol Yoo and Jeongyeon Kim, were his biological parents and had parental responsibility for him. Crucially, the Tribunal found that they could lawfully determine where the applicant was to live and had both provided their consent to the grant of a temporary visa to the applicant. Based on this evidence, the Tribunal was satisfied that the applicant met PIC 4017.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets PIC 4017 for the purposes of clause 600.213(2) of Schedule 2 to the Regulations.