Zhu (Migration)

This matter concerned an appeal by a secondary visa applicant, a dependent child, against a decision regarding a Subclass 309 Partner (Provisional) visa. The primary applicant, the child's biological mother, had been granted a Subclass 309 visa. The central dispute revolved around whether the secondary applicant met the requirements of clauses 309.229 and 309.326 of Schedule 2 to the Regulations, specifically concerning Public Interest Criteria (PIC) 4015, 4016, 4017, and 4018. The court was the Administrative Appeals Tribunal, with Member Helena Claringbold presiding.

The legal issues before the Tribunal were whether the secondary applicant satisfied PIC 4015 and 4016, as required by clause 309.229 for primary criteria, and PIC 4017 and 4018, as required by clause 309.326 for secondary criteria. PIC 4015 and 4017 require the Minister to be satisfied that the law of the applicant's home country permits their removal, or that all persons with legal guardianship consent to the visa grant, or that the grant is consistent with any Australian child order. PIC 4016 and 4018 require the Minister to be satisfied that there is no compelling reason to believe that granting the visa would not be in the applicant's best interests. The secondary applicant's biological father's whereabouts were unknown, and the Tribunal had to consider the implications of this for satisfying the consent requirements under PIC 4015 and 4017.

The Tribunal found that the secondary applicant was a dependent child and a member of the primary applicant's family unit, and had made a combined application. The Tribunal was satisfied that the secondary applicant met the requirements of PIC 4015 and 4016, and PIC 4017 and 4018. Consequently, the Tribunal remitted the application for the Subclass 309 visa for reconsideration by the Minister, with the direction that the secondary visa applicant met the specified criteria.