1712985 (Migration)

[2018] AATA 5049

1712985 (Migration) [2018] AATA 5049 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712985

MEMBER:Russell Matheson

DATE:14 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 14 August 2018 at 9:34am

CATCHWORDS

MIGRATION ­– Child (Residence) (Class AH) visa – subclass 101 (Child) visa – no approved sponsorship in force – sponsor failed to provide the police check within a reasonable time as requested – decision under review affirmed

Practice and procedure – valid 375A Certificate

LEGISLATION

Migration Act 1958, ss 65, 375A

Migration Regulations 1994, r 1.20KB, Schedule 2, cls 101.212, 101.222, 116.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 and Border Protection on 1 June 2017 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 for the visa on 28 October 2014. 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, cl.101.222 which requires that sponsorship by an eligible Australian citizen, permanent resident or New Zealand citizen has been approved by the Minister and is still in force at the time of decision.

4. The delegate refused to grant the visa on the basis that cl.101.222 was not met because the limitation on approval of sponsorship in r.1.20KB applied; there was no approved sponsorship in force. The sponsor seeks review of the delegate’s decision.

5. The review applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments.  The review applicant stated that she did not require an interpreter because she spoke good English. The Tribunal placed the interpreter in the Uzbek and English languages on standby to be used if required. The interpreter was not required during the hearing.

6. The review applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

8. The applicant is the biological child of the sponsor, [a] permanent resident of Australia. Parent- child relationship has been established-DNA test has been undertaken by the applicant and sponsor.

9. A certified copy of a birth certificate was provided listing the applicant’s date of birth as [date]. The parents on the birth certificate are the sponsor and her former husband [(father)]. The sponsor provided a copy of the father’s death certificate indicating that he died on [date].

   Hearing

10. 375A Certificate.  The Tribunal told the applicant that certain information in the Department of Immigration (the Department) file is the subject of a 375A certificate.  This certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest. The Tribunal considered the validity of the certificate and finds the certificate valid. The Tribunal invited the applicant to comment on the validity of the certificate. The applicant made no comment on the validity of the certificate. The Tribunal has considered the information that is the subject of the certificate and is of the view that some of the information relates to Departmental records, it is relevant to this review and the Tribunal places some weight on the information under the certificate. The Tribunal told the sponsor the information it considered relevant was that Departmental records indicated that the sponsor and Mr [A] are recorded consistently as residing at the same address. The Tribunal informed the sponsor that this was also recorded in the delegate’s decision made on 1 June 2017. The sponsor (the review applicant) provided a copy of the delegate’s decision to the Tribunal.     

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the sponsorship requirements at the time of application cl.101.212 have been approved by the Minister and is still in force at the time of decision cl.101.222.

12. It should be noted that r.1.20KB limits the Minister’s discretion to approve sponsorships.

    Regulation 1.20KB (12) states:

    (12) in addition to other reasons set out in this regulation for refusing to approve sponsorship, the Minister may refuse to approve the sponsorship of applicant for a visa if;

    (a) the minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and

    (b) the sponsor or the sponsor’s spouse or de facto partner does not provide a police check within a reasonable time.

13. The applicant is the daughter of the sponsor who was granted her permanent partner visa on 7 March 2014. The visa was granted on the basis of her long-term relationship with her husband Mr [B].

14. Five months after the sponsor in this case was granted her own permanent visa based on her relationship with Mr [B], she gave birth to her second child ion[date], Ms [C] to a different man, [Mr A] who was living with them. The sponsor provided documentary evidence to the Tribunal that she had separated from her husband, Mr [B] [in] March 2014.

15. Departmental records indicate that the sponsor and Mr [A] have lived at the same address in Australia over a lengthy period of time. The sponsor told the Tribunal that she is not in a de facto relationship and is a single parent. The sponsor told the Tribunal that when she lived with Mr [A] they lived in separate rooms and that she became pregnant to Mr [A] [details deleted].

16. Evidence before the Tribunal is that Mr [A] provided his credit card details to pay the visa application charge for the current child visa application. At the time of lodgement, Mr [A] declared the same address as the sponsor in the credit authorisation form and signed the form. The Tribunal notes that credit card authorisation forms require the person paying a visa application charge provide certain details, including their current address. The sponsor told the Tribunal that she used Mr [A]’s credit card to pay for the visa application completed the authorisation form and placed her own address on the form and not Mr [A]’s residential address. The Tribunal does not accept the sponsor’s evidence as credible as Mr [A] had to sign the authorisation form at the time of the visa application and the onus was on him to provide his correct details to the Department.  Based on the evidence provided in the sponsorship and credit card authorisation forms the Tribunal is of the view the sponsor and Mr [A] were living at the same address and in a de facto relationship at the time of the visa application. Based on the evidence provided by the sponsor to the Tribunal the Tribunal is of the view that the sponsor was financially dependent on Mr [A] and living with him in a de facto relationship at the time of the visa application. The sponsor provided no evidence to support that Mr [A] lived elsewhere at the time of the visa application.

17. On [date] the sponsor gave birth to her third child; [and] the sponsor declared that the father of her third child is [Mr A]. The sponsor and Mr [A] have two children aged [age] years and [age] years of age. The Tribunal queried the sponsor if she was not in a de facto relationship with Mr [A] why did she have a second child with him. The sponsor told the Tribunal that she wanted to have more children and that she heard a rumour that Mr [A] wanted to donate his sperm. The sponsor said that she approached Mr [A] and he told her he had a case number with a sperm donation clinic in Sydney and had appointments to donate sperm. The sponsor told the Tribunal that she attended the [Clinic] and obtained the instructions and tools to impregnate her-self with Mr [A]’s sperm and as a result had a second child to him.  The sponsor claims that she was not living with Mr [A] at the time they were just friends. The sponsor’s agent addressed the Tribunal in relation to Mr [A] donating his sperm to the sponsor so she could have another child. The agent told the Tribunal that it is possible for this to occur and not be in a de facto relationship at the same time because the sponsor was desperate to have children and was worried because she has an illness. He further stated that the sponsor wanted to have another child because she was missing her first child (the visa applicant). Based on the evidence provided the Tribunal is of the view that the sponsor and Mr [A] planned to have a second child together via sperm donation. The parties already had a child together and planned to have another child. The Tribunal finds that they were in a de facto relationship at the time they decided to have another child together and continue to be in a de facto relationship. Based on the evidence provided the Tribunal finds they were in a de facto relationship at the time. The Tribunal also accepts the submission by the sponsor’s agent that it is possible to be a sperm donor and not be in a de facto relationship, the Tribunal is of the view this is not the case in this matter.

18. The sponsor further stated that Mr [A] is the biological father of her two children born in Australia and that he sees his children whenever he wants and that he has provided baby formula and nappies for the children. The sponsor also said that the applicant provides child support but does not assist financially because he is currently serving a [prison] term. The sponsor said that she does not know why Mr [A] is in prison; all she knows is that he was found guilty and given a [sentence]. The Tribunal finds on the evidence provided that if Mr [A] remains in Australia and wishes to visit his children after being released from prison that appropriate penal checks in Australia and from overseas should be provided in relation to this visa application.   

19. On 16 February 2017, the sponsor was informed through her agent that the Department was satisfied that the sponsor was in a de facto relationship with Mr [A] and that Mr [A] was required to provide relevant police clearance certificates to satisfy r.1.20KB (12) of the Regulations. She was also advised that Mr [A] arrived in Australia in 2011 and would require both Australian and overseas clearances.

20. In response to the request, the sponsor told the Department that she is currently single, and is not in a de facto relationship with Mr [A] or her former spouse. The sponsor further stated that she had her second child, [Ms C] while she was still in a relationship with her former spouse, Mr [B], due to [details deleted]. The sponsor believes that she did not have to provide penal clearances for Mr [A] and her former spouse.

21. No further request for an extension of time were requested by the sponsor to provide the police checks for Mr [A] for the purposes of r.1.20(12)(b), nor was any further information provided to suggest that the parties were not in a de facto relationship.

22. Based on the evidence provided to the Tribunal the sponsor and Mr [A] are consistently recorded as residing at the same address and have common children. The Tribunal is satisfied that the sponsor and Mr [A] are in a de facto relationship. In these circumstances the Tribunal considers it is appropriate that, the sponsor and Mr [A] provide penal certificates to satisfy r.1.20KB (12) of the Regulations.

    Sponsorship

23. Clause 101.212 requires that, at the time of application, the visa applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the visa applicant is their dependent child, or a cohabiting spouse or de facto partner of that person. At the time of decision, this sponsorship must have been approved and still be in force: cl.101.222.

    Findings

24. The sponsor was requested by the department to provide a police check for the sponsor’s de facto [partner]. The sponsor failed to provide the police check within a reasonable time as requested. Therefore as no approved sponsorship is in force, the applicant does not satisfy r.1.20KB under cl.101.222.

25. Accordingly, the requirements in cl.101.222 are not met.

26. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

27. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Russell Matheson
    Member