1403481 (Migration)

[2016] AATA 3451

1403481 (Migration) [2016] AATA 3451 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Tatsanee Chanmai

VISA APPLICANT:  Master Theerakarn Sarnnok

CASE NUMBER:  1403481

DIBP REFERENCE(S):  OSF2012/009103

MEMBER:Don Smyth

DATE:4 March 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

· cl.101.226 of Schedule 2 to the Regulations.

Statement made on 04 March 2016 at 9:32am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 February 2014 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 20 December 2012. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.226.

4. The delegate refused to grant the visa on the basis that cl.101.226 was not met because the delegate was not satisfied that Public Interest Criterion 4017 was satisfied in relation to the visa applicant.

5. The review applicant appeared before the Tribunal on 8 April 2015 and 22 December 2015 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Thai and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the visa applicant satisfies PIC 4017 and PIC 4018.

   Summary of Claims and Evidence

8. The history of this case is lengthy. The review applicant attended an initial hearing of the Tribunal on 8 April 2015. Further material was provided to the Tribunal after this initial hearing. The Tribunal then made inquiries through the Department’s post in Thailand. It conducted a further hearing with the review applicant on 22 December 2015. Further post-hearing submissions were received on 20 January 2016. The relevant evidence is summarised below.

9. According to information provided in the visa application, the visa applicant was born in Thailand on 25 September 1998. Copies of the visa applicant’s birth certificate and extracts from his Thai passport were submitted to the Department. The Department was also provided with copies and translations of the visa applicant’s birth certificate (which identifies his father as Theerayut Sarnnok), a House Registration document relating to the visa applicant and a Thai National ID card for the visa applicant. At the time of the visa application, the visa applicant was living in Bangkok.

10. The visa applicant was sponsored in relation to the application by his mother, the review applicant. The review applicant was also born in Thailand. She is an Australian permanent resident. The Department was provided with a copy of her Thai passport which contains a record showing that she was granted a Subclass 801 visa on 23 June 2010. The review applicant is married to Mr Simon Hales, an Australian citizen. The Department was provided with a number of documents relating to the review applicant and her husband, including their marriage certificate. The review applicant made a statement in which she indicated that her husband had sponsored her for a Partner visa.

11. In the visa application, the review applicant indicated that she did not have the sole legal right to determine where the visa applicant shall live or to remove the visa applicant from Thailand permanently. In contact with the Department, she indicated an intention to obtain a form 1229 signed by the visa applicant’s father, Theerayut Sarnnok. The Department also contacted the review applicant to request a letter of consent from the non-migrating parent. The Department’s file contains records of correspondence between the Department and the review applicant in relation to this issue.

12. On 5 February 2014, the delegate made a decision to refuse to grant the visa applicant a Subclass 101 visa. The delegate noted that no letter of consent from the visa applicant’s biological father had been forthcoming. The delegate noted that the review applicant had submitted a document in the Thai language (folios 67 to 70 of the Department’s file) but that this document was a transcript of an interview between the sponsor and an official on 4 April 2013. The delegate found that the contents of this document did not constitute consent from the biological father to the grant of the visa.

13. The review applicant provided a copy of the delegate’s decision in support of the review application. She made a written submission to the Tribunal, dated 25 February 2014. She stated that, while she was in Thailand on 14 January 2014, the visa applicant’s father had granted permission for her son to immigrate to Australia. This was in the form of a “Letter of Consent” notarised by the Government office in Thailand and accompanied by a translation. She stated that she had returned to Australia on 18 January. Because she believed that the original application had already lapsed, she had brought the consent letter with her to Australia with the intention of making a new application in Australia in 2014. She stated that the permission from her son’s father had been granted prior to the delegate’s decision.

14. The Tribunal was provided with a copy and translation of a Letter of Consent apparently signed by Mr Theerayut Sarnnok. This stated that he gave his consent for the visa applicant “to go abroad”.

15. The review applicant e-mailed the Tribunal on 19 February 2015 inquiring as to the progress of the case. She stated that her son did not live with his father and had limited family around him in Thailand. A further submission was received on 1 April 2015. It was submitted that the child was 16 years of age and living under the care of the review applicant’s sister. He no longer received any care from his biological father. The review applicant was worried about his welfare “because of the insufficient supervision by family”. It was submitted that the visa applicant’s biological father had now given his consent. It was submitted that the statement had been signed in the format dictated by the local government where the child was born. This was the only official document the family had been able to obtain.

16. Further submissions were received on 2 April 2015. These included a Statutory Declaration from the review applicant, a Birth Certificate for the visa applicant and a copy of House Registration certificates for the review applicant and the visa applicant. In her statutory declaration, the review applicant stated that her relationship with the visa applicant’s biological father ended when her son was two years of age. She stated that the visa applicant had lived under a “shared care arrangement”. She came to Australia in 2008. Since her marriage, she had lived with her husband, Simon Hales. When she left Thailand, she and her husband arranged for the visa applicant to move into an apartment under the review applicant’s sister’s care in 2013. They subsequently purchased an apartment in Bangkok in 2014. The visa applicant had moved there to live under the care of the review applicant’s sister. The review applicant stated that her sister was the only one who was visiting and looking after the visa applicant. She stated that they were worried about his wellbeing and that they believed it was important for him to be with family. She stated that they had now obtained the consent from his biological father for his travel to Australia. The review applicant stated that she had flown back to Thailand for the execution of the letter of consent to confirm the father’s agreement for the visa applicant to live in Australia. She had been required to be present for the document. She stated that the format was predetermined by the Thai local government office where the visa applicant was born and was the only formal document they could obtain.

17. The review applicant attended a Tribunal hearing on 8 April 2015. Her evidence was to the effect that she had not married Theerayut Sarnnok and that she had lived with him for two years before they separated. She indicated that she had been the main carer for him when he was young but that the biological father had had some role in looking after him. When asked whether there was any written agreement about custody or parental power, the review applicant stated that they had no legal agreement because, according to Thai law, the child would be under the mother’s care. She stated that in Thailand it was the law that children would have to be with the mother all the time. She said that the child’s father was not in a position to look after the boy. She gave evidence to the effect that, when she first came to Australia, the visa applicant had been staying with a relative on the father’s side. She had later bought an apartment in Bangkok and the visa applicant was now living in this property with her sister. She indicated that the visa applicant had been living with her sister for more than three years. They had been at the current apartment for about one and a half years.

18. When asked about whether Theerayut Sarnnok was registered as the legitimate father of the visa applicant, the review applicant said they just had his name on the birth certificate. That was all. The Tribunal asked whether it was registered with the amphur that he was the father. The applicant stated that it was in the birth certificate. Normally it would be there when they registered the birth.

19. The Tribunal discussed with the review applicant the requirements of PIC 4017. In this regard, the review applicant referred to the consent form signed by the visa applicant’s father. The Tribunal questioned whether, by consenting to the visa applicant going abroad, the father had given consent to the grant of the visa. It noted that the visa was a permanent visa for the visa applicant to stay in Australia. The review applicant stated that, when they went to the amphur or District Registry, the Registry had a consent form. They put in whatever the wording was there about consenting. It was translated into English. She stated that the form just said that the father allowed the son to travel overseas. They did not clarify that he wanted the child to come and live in Australia. She said that they had no authority over the amphur to add anything else. The Tribunal discussed with the review applicant how she had been able to obtain the consent from the father. She gave evidence that, when they went to the amphur, the father had written the required letter. In that letter he said quite clearly that he allowed the son to come and live with the review applicant overseas. She said that the amphur kept that letter and issued her with that form. She said she did not have a copy of that letter. She said everything was kept at the amphur.

20. Mr Hales also made submissions to the Tribunal at the hearing. At the review applicant’s request, the Tribunal sought to contact the visa applicant at the hearing. However, it was not successful in making contact with the visa applicant on the number that had been provided. The Tribunal agreed to provide the review applicant with three weeks, or until close of business on 29 April 2015, to provide any further documents.

21. On 14 April 2015, the review applicant’s representative wrote to the Tribunal requesting an extension of time until 8 May 2015. The representative indicated that the review applicant and her husband were actively making arrangements to obtain a further statement confirming the consent. The Tribunal granted an extension of time until 8 May 2015.

22. On 7 July 2015, the Tribunal contacted the review applicant’s representative to establish whether there was an intention to make further submissions. The representative subsequently e-mailed the Tribunal indicating that further instructions were being sought from the clients. On 10 July 2015, the representative e-mailed further documentation in support of the application. The representative indicated that the client was in the process of finalising a statement regarding the matter.

23. The additional information submitted on 10 July 2015 consisted of a document described as showing the review applicant’s Thai bank book, a bank statement for the review applicant’s account (apparently showing transfer deposits), an image of a bundle of Thai bills, accounts and apartment levies, and numerous records of transfers by the review applicant.

24. On 10 July 2015 the review applicant’s representative provided a further e-mail to the Tribunal attaching a statutory declaration from the review applicant. In her statutory declaration, the review applicant stated that the visa applicant was 16 and lived in Bangkok through her financial support. He attended school using funds she provided. She declared that she was the sole and full provider for the visa applicant. Since 2012 the father had not supported the visa applicant in any way, failing to provide financial support, safe housing, education, parental guidance or emotional support. The review applicant asserted that the visa applicant was unable to live with his father “for health and safety reasons”. She had paid rent for an apartment that the visa applicant lived in from 2012 to 2013 and had then purchased an apartment in 2014 to provide accommodation for the visa applicant because he was unable to live with his father. The visa applicant lived substantially on his own with the occasional short visit from the review applicant’s sister who lived in central Thailand.

25. The review applicant stated that the visa applicant had made extensive efforts to obtain a signed and certified consent from his father for permission to travel to Australia. Over the period from 10 April to 28 April, the father had avoided the visa applicant. At other times the father had argued with the visa applicant and also told him that he did not need to travel to Australia, that he did not need to be with his mother, that he did not need a better education and that he should leave school and get a job. The review applicant stated that these actions were not supportive and did not demonstrate care and concern for the visa applicant. She stated that the visa applicant’s relationship with his father had been deteriorating for years and that the process of seeking his father’s support for the visa had been stressful and hurtful. She stated that the relationship between the visa applicant and his father had now effectively broken down. The visa applicant was alone much of the time and estranged from his father. She said that she was, in practice, his only supporting parent but was separated from him. The visa applicant was seeking guidance, support and a good education, but could not have these things while in Thailand. The review applicant stated that the visa applicant wished to come to Australia to be re-united with his mother and to gain the benefits of a loving parent and the rewards of support in a family.

26. At the Tribunal’s request, the review applicant also submitted an “Affidavit Affirming Parental Power” or Por Kor 14 in relation to the visa applicant. This document was dated 16 January 2014 and apparently signed by the review applicant at the Office of Chatuchak District. It stated that the review applicant had resided with Mr Theerayut Sarnnok without marriage registration and that they had a child, namely Theerakarn Sarnnok, It stated that Mr Theerayut Sarnnok had never registered child legitimacy and that the Court had never issued a judgment in relation to legitimation. The review applicant was the sole person providing support and maintenance for the child as his legitimate mother pursuant to section 1546 of the Civil and Commercial Code.

27. Following receipt of these documents, the Tribunal requested that inquiries be made through the Bangkok post. It requested the post to obtain advice from the relevant Thai authorities in relation to the following matters:

    1.       Was the Letter of Consent dated 14 January 2014 … in fact signed in front of the Assistant District Director in Din Daeng District on 14 January 2014?

    2.       Does the Amphur have a letter from Mr Theerayut Sarnnok or any other document confirming that Mr Theerayut Sarnnok gave consent to Theerakarn Sarnnok being granted a permanent visa for Australia?

    3.       Are the authorities able to provide any information as to who has parental power in relation to the child Theerakarn Sarnnok?

    4.       Are the authorities able to provide any advice as to whether the information provided by Ms Chanmai in the Affidavit Affirming Parental Power … is accurate?

28. The Tribunal forwarded copies of the Letter of Consent and the Affidavit Affirming Parental Power for verification.

29. The Tribunal received a response from the Department on 15 September 2015.

30. With regard to the Letter of Consent the advice was as follows: “Dindaeng District office confirmed that the document was legitimately issued by the District office and no change has been made on the document”. However, a representative of the Dindaeng District Office advised that “she could not confirm that there are any other document that Mr Theerayut Sarnnok provided to the office since this letter was issued a long time ago”.

31. With regard to the Affidavit Affirming Parental Power, the Tribunal was advised that Jatujak District Office had confirmed that the document was legitimately issued by the District Office and no change has been made on the document.

32. With regard to whether the authorities were able to provide any information as to who had parental power in relation to the visa applicant, the response was as follows:

    See below information quoted from Siam-legal.com

    - Thailand Child custody for an unmarried couple

    If the unmarried couple has a child born out of the marriage, the mother of the child only has the sole custody over the child. However, prior to considering whether the father should exercise the custody rights over the child, the child must be registered as a legitimate child of the father first. To legitimize a child, the father has to register a legimation of the child in Thailand with the local district office. If the mother and the child consent to such legitimation; then the registration allows the father to have the joint custody or sole custody over the child upon the agreement between the father and the mother of the child.

33. With regard to whether the authorities were able to provide any advice as to whether the information provided by the review applicant in the Affidavit Affirming Parental Power was accurate, the response was to the effect that the authorities had only made a record of what was said by the review applicant but were not able to confirm that the information was accurate.

34. The Tribunal invited the review applicant to attend a further hearing on 22 December 2015. At the hearing, it informed her of the outcomes of its inquiries. It discussed a number of matters with the review applicant, including the nature of the relationship and the contact between the visa applicant and his biological father.

35. In summary, the review applicant gave evidence that the father was ignoring the visa applicant. He said to her son that he had already done his job by coming to the amphur to sign a document. He did not want to talk about that because he had already done what the visa applicant had asked him to do.

36. The review applicant gave evidence about the visa applicant having lived with his paternal grandmother. She indicated that this was near where his father lived. However, she said that his father did not look after him. The financial support came from her. She indicated that, before she came to Australia, her son was living with the paternal grandmother. She said she needed him to live with the grandmother because it was close to the school. On Friday, Saturday and Sunday and on school holidays, the visa applicant lived with her. She said she had to work. She had said that when her son was young she was the main carer but the father had some care on weekends and holidays. She said this was when he was little. When he grew up and went to school, because the school was close to his grandmother’s place, her son lived with his paternal grandmother.

1. The Tribunal also discussed with the review applicant who had parental rights and responsibilities. It asked about whether the biological father had been registered with the Thai authorities. The review applicant referred to what was stated on the Pok Kor 14. The Tribunal put to her that this seemed to be what she had said. It was like a statutory declaration. The review applicant stated that before she could make the Pok Kor 14 they needed to check it. When she made the Pok Kor 14 they checked everything and she had to have a witness. The review applicant gave evidence to the effect that she had never been married before. She said when her son was born she had to register her son’s name and put his father’s name on the birth certificate. She said he never registered.

2. When asked about how the visa applicant obtained a passport in April 2013, the review applicant gave evidence that she took him to make the passport. She said they needed a passport number for the health check.

3. The Tribunal referred to PIC 4018. The review applicant stated that her son was now in Asia and he mostly lived alone. She stated that she had her sister. Her sister had a health problem. The sister could not travel to Bangkok from the countryside. She had a family and had a health problem and needed to see the doctor most of the time. She stated that the visa applicant was living alone. Many things could happen. When he had a problem he had to go to the teacher. She contacted the teacher all the time and sometimes she asked her friend to come to see him. She stated that it was not a good idea for a boy to live alone. There was no support when he needed it. She said she was his mother and lived very far from him. All she could do was talk to him on the phone. It had been difficult for them. She stated that her son was willing to live with her. That was good for his future. He did not have much love from his father. She stated that they could build a relationship. As a teenager he still needed support a lot from her.

4. The Tribunal provided additional time for the review applicant to make submissions, in particular, in relation to the question of whether the visa applicant’s biological father had ever been registered as the father.

5. The review applicant made post hearing submissions dated 20 January 2016. The submission addressed a number of issues.

6. With regard to the question of whether the review applicant and Theerayut Sarnnok had ever been married, the review applicant produced a copy and translation of a Certificate issued by the Phimai District Office on 27 March 2008. This stated that the review applicant had never registered a marriage.

7. With regard to whether the visa applicant’s father had ever registered the visa applicant as his son, the submission referred to a Kor Tor 6601/1557 document from 2013. This document was headed “Re: Child Custody Investigation” and was dated 4 April 2013. It was addressed to the Visa Officer, Australian Embassy. It stated that the review applicant had submitted an application to conduct an investigation regarding child custody. It stated that Lat Phrao District Office had conducted an investigation on the review applicant and three other persons. Attached were three documents, each of which was described as “Statement Report (Form Por Kor 14)”. These statements were completed by the review applicant, Mrs Nongnard Yodnamkham and Mrs Wannarat Wongwicharn. Each of these parties stated that the visa applicant was born from an unregistered marriage and that the review applicant had sole guardianship in relation to the visa applicant. It was submitted that the three declarations were from 2013, prior to the production of the consent letter from Theerayut Sarnnok. It was submitted that the declarations were all that it was possible to present as evidence in this regard. It was submitted that it was not possible to present records to the Tribunal where no records had been identified or located at government offices.

8. The submission also addressed the question of whether the visa applicant had lived with his father and whether the father had given consent for a permanent visa. It was submitted that the visa applicant had lived alternatively with the review applicant and his grandmother during childhood, but not at his father’s residence.

   Consideration

9. The information provided by the review applicant indicates that the visa applicant has not turned 18. In these circumstances, cl.101.226 requires that PIC 4017 and 4018 must be satisfied in relation to the visa applicant.

10. The issue in the present case is whether PIC 4017 is satisfied in respect of the visa applicant. PIC 4017 requires that the Minister must be satisfied of one 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.

11. If the applicant satisfies PIC 4017, the Tribunal must also consider whether Public Interest Criterion 4018 (PIC 4018) is satisfied. This requires the Tribunal to be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

12. With regard to PIC 4017(a), the Tribunal has considered independent country information concerning the law of Thailand.

13. Thailand’s Civil and Commercial Code (the Code) sets out the law relating to parentage and the rights and duties of parent and child (see [Kingdom of Thailand] n.d., ‘[Private Law in Thailand. Thai Civil Law, Book V] Title II Parent and Child Chapter [Part] I Parentage’ and ‘Chapter [Part] II Rights and Duties of Parent and Child’, Thailand Law Online, Sections 1536-1560 & 1561-1584/1 < [accessed 13 April 2015] <CISNET Library CISEC96CF1534>).

14. Section 1546 of the Code provides that a ‘child born of a woman who is not married to a man is deemed to be the legitimate child of such woman’. Section 1567 provides that the rights of a person exercising parental power include the rights ‘to determine the child’s place of residence’ and ‘to demand the return of the child from any person who unlawfully detains him’.

15. A Thai-based lawyer provided the following advice on the significance of parental powers:

    Parental powers are the rights AND obligations exercised exclusively by the parents to raise a child. A parent or both parents having parental powers will have the right to make all the decisions concerning a child, including, for example, choices regarding religion or education. In return, parents have an obligation to provide physical, moral and emotional health to the child. Parental powers in Civil Law are WIDER than terms like 'custody'. […] 'custody' may apply only in matters where the parents are parents are physically present but under Civil Law, the parent or parents can be away from a child and still have ‘parental powers” (or ‘parental authority’). (Brousseau S H 2010, ‘Custody of a child in Thailand | Thai Law’, 15 January, at ‘1. Definitions’ at ‘A) Parental Powers’, on Isaan Lawyers [Thai Law Online] website >

    With regard to the effect of section 1546, another Thai-based lawyer stated in 2012:

    Under Section 1546, when a child is born and the mother is not married to the father, the mother is the sole person who exercises parental powers over the child to the exclusion of the father.

    This is the case notwithstanding that the father may be described on the child’s birth certificate as the father or that the father can prove, for example, by DNA testing that he is the biological father. (Lynch J 2012, ‘Parents and Children Custody and Parenting Law in Thailand’, Thailand Intrigue blog, posted 23 October >

    Similarly, another source stated that, when a child was born and the mother was not married to the father, the father had no legal rights over the child. Only the mother had rights over the child. Even if the father was on the birth certificate, he would not be the “legalized father”. However, as noted by the same source, section 1547 of the Code provides for exceptions to this in circumstances where there is a subsequent marriage between the parents, there is a registration made at the amphur or there is a judgment by the Court (Brousseau 2010, cited above).

16. Section 1548 of the Code provides for the process of “registration of legitimation”. It provides for notification of the child and the mother in circumstances where they do not appear before the Registrar to give consent to an application for legimitation. It provides that, where the child or the mother raises an objection or does not give consent, the registration must be effected by a judgment of the court.

17. In the present case, the review applicant herself indicated in the sponsorship form that Theerayut Sarnnok, the biological father of the visa applicant, is a person who has parental responsibility, access or guardianship rights in relation to the visa applicant. On the other hand, she claims that the child was born out of wedlock and that the father has not been registered as the legitimate father.

18. When asked at the hearing about the information she had included in the sponsorship form, the review applicant stated that, when she applied and ticked that box, she was thinking he was the father. She thought it was the right thing to put down. The Tribunal accepts that it is entirely possible that the review applicant does not have an in-depth knowledge of Thai law and that she did not understand what legal rights might be attached to the status of biological father. The Tribunal notes that the review applicant was represented and it might be expected that a representative would be able to provide her with some assistance in this regard. Nevertheless, the Tribunal is willing to accept that the review applicant answered the question having regard to the fact that Theerayut Sarnnok is the biological father of the visa applicant. While the response in the application caused the Tribunal some concern, the Tribunal ultimately does not consider it determinative.

19. With regard to her marital status, the review applicant has consistently claimed that she was never married to the biological father of the visa applicant. The review applicant has produced a marital status certificate from the Thai authorities which appears to confirm that she was never married. The same marital status certificate was submitted for the purposes of the review applicant’s Partner visa application. She indicated in that application that she had never previously been married. The Por Kor 14 documents signed by the review applicant and two other witnesses in April 2013 attested to the fact that the review applicant had not been in a registered marriage with the visa applicant’s father. On the evidence before it, the Tribunal accepts that the review applicant was never married to the father of the visa applicant.

20. In these circumstances, the mother is the sole person who exercises parental power pursuant to section 1546 of the Code. The fact that the father’s name appears on the birth certificate, as is the case here, does not alter this fact. This is the case unless a relevant registration or “legitimation” has been made in relation to the father or there has been a relevant court order. It is apparent from the terms of section 1548 that the mother would be aware if an application for registration of legitimation had been made by the father.

21. The review applicant’s evidence has consistently been to the effect that, apart from having his name on the birth certificate, the biological father has not been in any way officially registered as the father. The review applicant gave this evidence even when she was clearly not aware that this would assist the visa applicant in satisfying PIC 4017(a) and was instead seeking to demonstrate the father’s consent for the purposes of PIC 4017(b).

22. In response to the Tribunal’s request, the review applicant produced a Por Kor 14 document or Affidavit Affirming Parental Power. This had been written at the Office of Chatuchak District on 16 January 2014 and was signed also by an official. It stated that Mr Theerayut Sarnnok had never registered child legitimacy and had never issued judgment claiming the child as his father’s legitimate son. The advice received from the Post confirms that this is a genuine document. It was legitimately issued by the District Office and no change has been made to the document. However, the advice indicates that the authorities made a record of what was said by the review applicant and are not able to confirm the accuracy of the information. This does not in itself indicate that the statement was in any way inaccurate but suggests that the relevant authorities lacked the capacity to confirm the information independently.

23. The Department of Foreign Affairs and Trade (DFAT) has previously advised that whether a Por Kor 14 is sufficient to establish custody of a minor “may depend on the content of the Por Kor 14 and any supporting documentation…” DFAT described a Por Kor 14 as being similar to a statutory declaration in Australia, indicating that it was a statement declared to be true in front of an authorised witness (Department of Foreign Affairs and Trade 2011, DFAT Report 1257 – MRT Information Report THA38163, 15 March).

24. The review applicant has also produced to the Tribunal copies and translations relating to a “Child Custody Investigation” undertaken by the Lat Phrao District Office. This documentation had previously been submitted to the Department in untranslated form. It indicated that the review applicant had submitted an application for the office to conduct an investigation regarding the custody of the visa applicant for the purpose of the child’s visa application. It is apparent that the office responded to this request by conducting an “interrogation” of the review applicant and other witnesses, namely Nongnard Yodnamkham and Wannarat Wongwicharn. All of the witnesses attested to the fact that there had been no registered marriage between the review applicant and the visa applicant’s father, and that the visa applicant had been under the “sole guardianship” of the mother. These documents were produced in April 2013. It is apparent that they were not produced for the purposes of demonstrating that PIC 4017(a) was met. The review applicant and her representative did not advance any argument to the Department in this regard. Rather, the documents appear to have been produced to demonstrate to the Department the difficulties the review applicant was experiencing in obtaining the biological father’s consent. It is apparent that the evidence obtained in the course of the child custody investigation consisted of the statements given by the three witnesses. Nevertheless, the review applicant had requested an “investigation” by the Thai authorities and it would appear that this was the process the Thai authorities chose to undertake in response.

25. The Tribunal notes also that the review applicant has given evidence that she was able to obtain a passport for the visa applicant. The Tribunal accepts that this is the case. She produced to the Department a Thai passport issued on 1 April 2013. In advice issued in March 2011 in relation to children under 15 whose parents were divorced, DFAT suggested that it seemed that the relevant passports would only have been issued if the Thai Ministry of Foreign Affairs (MFA) had been satisfied that the documentation provided by the relevant parent established legal custody (Department of Foreign Affairs and Trade 2011, DFAT Report 1257 – MRT Information Report THA38163, 15 March). The Tribunal is conscious that the visa applicant in the present case was over the age of 15 at the time the passport was issued. However, for passport applicants between the ages of 15 and 20, the MFA advises that the documents required include, where relevant, documents such as “Adoption/Legal Custody Certificate/ Divorce Certificate, Memorandum of Divorce certifying sole custody” (Ministry of Foreign Affairs Kingdom of Thailand 2014, Thai Passport : Requirements for the Ordinary e-Passports Application, accessed 24 February 2016). Another source indicates that, for applicants who are under 20 years and whose parents have not married, a photocopy of a “Child Custody Document” is required (Royal Thai Embassy in London 2010, E-Passport Application, accessed 24 February 2016). This suggests that custody of the child is a matter considered by the Thai authorities when issuing a passport to a child aged between 15 and 20, as the visa applicant was at the relevant time. The Tribunal accepts that the review applicant was able to obtain a passport for the visa applicant and that this is consistent with her being recognised as the person with parental power in relation to the visa applicant.

26. The Tribunal has sought any documentation from the Thai authorities that might demonstrate that the biological father has not applied for registration of legitimation. The inquiries made through the Post did not reveal any such documentation. The Thai authorities confirmed the authenticity of the documentation submitted by the review applicant but were apparently unable to provide independent verification. The evidence indicates that the review applicant herself sought an investigation in relation to custody and that the Thai authorities responded through an “interrogation” of a number of witnesses. While reasonable inquiries have been made, it is not apparent that there is any other official documentation that would speak to this issue.

27. In the circumstances, the Tribunal has considered carefully the documentation that is before it. As discussed with the review applicant at the hearing, there is some information which might suggest that the visa applicant’s father has had some connection with the visa applicant and that the visa applicant has spent at least some time staying with his biological father. On the review applicant’s own evidence, the visa applicant had spent some time with his biological father when he was young, for instance on holidays and weekends, and later spent some time living at his paternal grandmother’s place because of its proximity to the school. However, it does not follow that the biological father had taken the step of formal registration according to the procedure under the law or had assumed parental power under the law. There is otherwise nothing in the evidence to indicate that the biological father has ever registered legitimation.

28. In the context of the present application, the review applicant has consistently claimed that the biological father had not applied for the relevant registration. Prior to making the application to the Tribunal, she had made statements to the Thai authorities in which she indicated that the biological father had never registered child legitimacy and that she had sole guardianship. While she was clearly focused on obtaining a visa for her son, she nevertheless made the statements in apparent ignorance of their significance in relation to PIC 4017(a). Two other witnesses were willing to make statements to the Thai authorities to similar effect. The review applicant has been able to obtain a passport for the visa applicant. While the Thai authorities have not been able to produce any definitive document verifying the child’s status, the Tribunal considers that reasonable inquiries have been made. The Tribunal has carefully analysed all the available information. It accepts on the information before it that the review applicant was never married to the visa applicant’s biological father and that the biological father has never applied for registration of legitimation. It accepts that, under Thai law, the review applicant is the sole person with parental power in relation to the visa applicant to the exclusion of the biological father.

1. As outlined above, “parental power” is defined in the Code as including the right “to determine the child’s place of residence”. The Tribunal is satisfied that the review applicant, who has never been married to the father of the visa applicant, is permitted according to the law of Thailand to remove the visa applicant from the country. In these circumstances, it is not necessary to consider whether the visa applicant satisfies PIC 4017(b) based on the consent document that has been submitted.

2. The Tribunal is satisfied that the visa applicant meets PIC 4017(a) and that the law of his home country permits his removal. It finds that he satisfies the requirements of PIC 4017 for the purpose of cl.101.226.

3. PIC 4018 requires that the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant.

4. The review applicant and Mr Hales have given evidence to the effect that the review applicant has been providing for the visa applicant in Thailand. In particular, the review applicant has given evidence that she purchased an apartment for him and that he has been living there since 2014. The review applicant has produced copies of House Registration documents indicating that she and the visa applicant are registered at the same address in Bangkok. The Tribunal accepts that the visa applicant is living in an apartment provided by the review applicant. The review applicant has also provided evidence in relation to matters such as bank transfers. The Tribunal accepts that the review applicant has been providing support to the visa applicant as claimed. Both the review applicant and Mr Hales have indicated their intention to provide the visa applicant with love and support in Australia. The Tribunal accepts that they are committed to supporting him as claimed. On the evidence before it, the Tribunal is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant. PIC 4018 is satisfied in relation to the visa applicant.

5. As PIC 4017 and PIC 4018 are satisfied in relation to the visa applicant, he satisfies the requirements of cl.101.226.

6. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

7. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

   ·cl.101.226 of Schedule 2 to the Regulations.

   Don Smyth
   Senior Member