1823166 (Migration)

[2021] AATA 3369

1823166 (Migration) [2021] AATA 3369 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823166

MEMBER:David Barker

DATE:18 June 2021

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 18 June 2021 at 1:55pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –– visa applicant is not a biological child of the review applicant – DNA result – sponsor has taken responsibility for supporting the applicant since his birth – unfortunate circumstances of this case – ministerial intervention – decision under review affirmed

LEGISLATION

Family law Act, s 69Q

Migration Act 1958, ss 5, 65, 351

Migration Regulations 1994, rr 1.03, 1.04, Schedule 2, cls 101.211, 101.221

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 Home Affairs on 11 June 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 4 September 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211.

4. The delegate refused to grant the visa on the basis that cl 101.211 was not met because they found that the visa applicant is not the child or step-child of the sponsor and therefore that the visa applicant is not the dependent child of the sponsor.

5. The review applicant (hereafter called the sponsor) appeared before the Tribunal on 28 May 2021 by video conference to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (hereafter called the applicant) [name deleted], the wife of the sponsor [Ms A] , the brother of the sponsor [name deleted], the biological mother of the applicant [Ms B] , and friends of the sponsor [names deleted]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.

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

   BACKGROUND

7. The background to this case encompasses the tensions between the Tutsi and Hutu ethnic groups which resulted in the internal massacres in Rwanda in 1994 and the ongoing violence occurring within that and neighbouring countries since 1994.

8. The sponsor was born in Rwanda and is [age] years of age. He first arrived in Australia in July 2012 on a Student visa. He was granted a Protection visa in November 2012 and became an Australian citizen in July 2017. He currently resides in NSW with his wife ([Ms A]) and two sons, respectively aged [age] and [age]. He claims to have two elder children who remain in Rwanda, a daughter, aged [age] and the applicant. The written submission from the sponsor, received by the Tribunal on 20 May 2021, and his evidence at hearing, in summary provides the following account of the sponsor’s and applicant’s connection with each other:

   ·Since 1991 the sponsor regarded [Mr C], otherwise orphaned after military activity, as his foster brother;

   ·In 1996 [Ms B] met [Mr C] and after a relatively short period of time they fell in love and in 1997 they married;

   ·[Ms B] was a member of the Tutsi ethnic group, as is the sponsor, and [Mr C] came from the Hutu ethnic group;

   ·[Ms B]’s family were opposed to her marriage to [Mr C] and a week after the wedding [Mr C] was kidnapped and killed;

   ·[Ms B] sought refuge with the sponsor’s family and subsequent to this, intimacy occurred between [Ms B] and the sponsor;

   ·[Ms B] then disclosed her pregnancy and the sponsor agreed to take responsibility and care for the child. A baby boy was born and given the surname [name] and the first name [applicant’s first name] (the applicant). The sponsor assumed he was the biological father of the applicant;

   ·A spousal relationship between the sponsor and [Ms B] did not evolve, and the applicant was placed in the care of the sponsor’s sister. [Ms B] returned to the home of her parents and the sponsor commenced university in a town nearby to where the applicant was in the care of his sister;

   ·The sponsor kept in contact with the applicant over the years, visiting him on a frequent basis whilst he studied at university nearby;

   ·In 2004 [Ms B] was pressured into a second marriage by her parents;

   ·In 2008 the sponsor met [Ms A]. After their marriage they moved from the town of Huye in Rwanda to Kigali and took the applicant with them. [Ms A] then had their first child;

   ·In July 2012 the sponsor and [Ms A] escaped violence associated with a Presidential election in Rwanda, going to Kenya. The applicant remained with the sponsor’s sister. The sponsor remained in contact with his sister, from Kenya, regarding the applicant’s welfare;

   ·The sponsor then took the opportunity to come to Australia and the applicant remained living with the sponsor’s sister in Rwanda;

   ·In 2013 the sponsor’s sister was detained and violently assaulted. The applicant and three other children in the sponsor’s sister’s household, including the sponsor’s daughter [name deleted], fled to Uganda;

   ·In 2014 the four children applied unsuccessfully for Protection in Australia;

   ·The sponsor subsequently enrolled the applicant in [a] school in Kampala, Uganda, where he completed secondary school studies, before commencing a [qualification] at [a] [University]. He was subsequently expelled from Uganda, in the context of escalating tension between that country and Rwanda, in 2019, after completing the first year of [the] course;

   ·The applicant returned to Rwanda, where he is residing in the home of the sponsor’s brother. He is currently, in the context of the COVID-19 pandemic, enrolled and studying an online [course] through [a] School;

   ·The sponsor has financially supported the applicant in relation to basic needs such as accommodation, food and clothing since he himself had a financial capacity to do so. This includes the provision of financial support to his siblings in whose homes the applicant has at times resided.

9. The Subclass 101 Child visa application was made on the basis of the applicant being the natural child of the sponsor.[1] The delegate’s decision record, a copy of which was provided with the review application, indicates that as part of the Department’s processing of the visa application, the sponsor and applicant were asked and consented to undertake DNA testing to verify their familial connection to each other. The delegate noted that, unfortunately, the DNA test excluded the sponsor as the biological father of the visa applicant and, in light of this, determined the applicant does not meet s 5CA(1)(a) of the Act as he is not the biological child of his sponsor as had been claimed in the application.

   [1] Response to Question 14 on Form 40CH – Sponsorship for a child to migrate to Australia.

10. Further to this, the delegate noted that a person wishing to migrate with a child who is not their biological child is in Rwanda required to formalise the arrangement through adoption. Adoptions which have not been granted by a court of competent jurisdiction are not formally recognised under Rwandan law. The delegate noted that the applicant had not claimed anywhere in his application to be the adopted child of the sponsor and that there was no evidence to support a contention that any such adoption procedures may have taken place. On this basis, the delegate found reg 1.04(1)(b) and reg 1.04(1)(c) were not met, resulting in a further finding that s 5CA(1)(b) was not satisfied.

11. Prior to the hearing, the Tribunal received documentary evidence including, but not limited to:

    ·Birth certificate and other identity documents for the applicant;

    ·Extract Translation of a Judicial Ruling to Issue an Official Birth Certificate Tribunal of Huye, 6 June 2013;

    ·Evidence of schools and education institutions attended by the applicant;

    ·Evidence of payment of the applicant’s education costs and of other financial remittances;

    ·Evidence of the sponsor’s employment and financial circumstances in Australia;

    ·Evidence of identity and marital status of the sponsor, the biological mother of the applicant and other relatives;

    ·Photographs with associated dating and captions showing the applicant at different stages of his life and in the company of the sponsor and other family members;

    ·Witness support declarations and statements;

    ·Medical records regarding the applicant;

    ·Asylum Seeker Certificate permitting the applicant temporary residence in Republic of Uganda, issued [January] 2014, expiry [April] 2014;

    ·Public Petition, [website deleted] ‘Unite [applicant’s first name] to his family’, c.127 names.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the visa applicant is the child or step-child of the sponsor.

13. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affairs (the Department’s) case file and the Tribunal’s review file and the evidence provided by the applicant, sponsor and witnesses at hearing.

14. At the time of the visa application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this review, the Tribunal will consider whether the visa applicant meet the criteria for the grant of a Subclass 101 (Child). In this case, no claims have been made in respect of either a Subclass 102 (Adoption) or Subclass 117 (Orphan Relative) visa.

    Subclass 101 (Child) visa

15. Clause 101.211 of Schedule 2 to the Regulations requires that at the time of application:

    (1) The applicant:

    (a) is a dependent child of:

    (i) an Australian citizen; or

    (ii) the holder of a permanent visa; or

    (iii) an eligible New Zealand citizen; and

    (b) subject to subclause (2), has not turned 25; and

    (c) either:

    (i) is:

    (A) the child (other than an adopted child); or

    (B) the step-child within the meaning of paragraph (b) of the definition of step‑child;
    of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or

    (ii) was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.

    (2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

16. Clause 101.211 must continue to be met at the time of decision: cl 101.221 of Schedule 2 to the Regulations.

17. The criterion in cl 101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

    Dependent child

18. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

19. The sponsor became an Australian citizen in July 2017; accordingly, cl 101.211(1)(a)(i) is satisfied if the applicant’s circumstances reflect those of a dependent child as defined in reg 1.03.

20. The term child as used in the definition of dependent child has its familial meaning as in ‘parent‑child’, and as prescribed in s 5CA of the Act. Since 1 July 2009, ‘child’ has been defined by s 5CA of the Act. The definition recognises a broader range of parent‑child relationships than previously, including children conceived through artificial conception procedures such as in-vitro fertilisation and children born under certain surrogacy agreements which are recognised under a prescribed State/Territory law as per the Family Law Act 1975. It is therefore no longer appropriate to refer to ‘natural’ children, because, under the s 5CA definition, children may have no biological links to their legal parents.

21. Section 5CA provides:

    (1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b) someone who is an adopted child of the person within the meaning of this Act.

    (2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

22. In this matter, the applicant is identified in the visa application as the natural child of the sponsor. However, as detailed in the delegate’s decision record and Background section of this decision, DNA evidence demonstrated that the sponsor is excluded from identification as a biological parent of the visa applicant. At hearing, the sponsor gave evidence that he was shocked when he received notification of this result through the natural justice letter sent by the Department. He told the Tribunal that he readily consented to undertake DNA testing, as he perceived it as just a formality and a necessary step to undertake prior to the grant of the applicant’s visa. The sponsor said that he has regarded himself as the father of the applicant since being informed of the pregnancy of [Ms B], the biological mother, as there had been sexual intimacy between them prior to her informing him of her pregnancy. The sponsor gave evidence at hearing that he nonetheless accepted the validity of the DNA test result, after contacting the laboratory who undertook the DNA assessment to check on the efficacy of their procedures and after taking advice from friends who are medical practitioners or scientists and who reassured him that the DNA results seemed quite conclusive. He said that he has not as yet told the applicant about the DNA results, as he is worried about how finding out that they are not connected through their bloodline, and of the fate of his actual biological father, may distress the applicant and add to his sense of dislocation.

23. The sponsor explained that despite the shock of discovering he is not the applicant’s biological father, this has not changed his commitment to the applicant, nor his wish to maintain their father/son relationship. He told the Tribunal that he has supported the applicant throughout his life to the best of his ability, depending on his own financial or related life circumstances, and that he will continue to do so. The sponsor gave evidence that he continues to want the applicant to come to Australia, where he can have a better future in a safe country and within the loving structure of his family.

24. The sponsor and applicant gave consistent evidence that the applicant is currently living in the home of his paternal uncle and studying online in a course which will hopefully lead to admission to post-secondary school courses in Rwanda or Australia. The sponsor expressed fear for the applicant’s safety in Rwanda, due to the extent of civil unrest, forced service in militia groups there and the ongoing conflict with surrounding countries. He said the applicant’s current studies are necessary because the applicant did not complete secondary school in Uganda and needs to achieve a higher level of education than he presently holds in order to attend University in Rwanda or Australia.

25. The sponsor gave oral evidence at hearing about the circumstances of the marriage between his foster brother [Mr C] and [Ms B]. He said they had a relatively short courtship and that their relationship was at no stage approved of by [Ms B]’s family because they came from different ethnic groups. He referred to the antipathy felt by [Ms B]’s Tutsi relatives towards [Mr C] because of his Hutu ethnic background. The sponsor gave evidence that after [Mr C] was killed, shortly after his marriage to [Ms B], she continued to experience strong disapproval from her relatives and other members of the Tutsi ethnic group and was as a result taken in by his parents. He explained that intimacy occurred between him and [Ms B], thus he accepted he was responsible when informed by her that she had fallen pregnant. The sponsor gave evidence at hearing that he was in a relationship with [Ms B] for a period of time, but that they decided that continuing their relationship was not tenable due to the ongoing threats of violence. The sponsor gave evidence that he fled to Uganda a few weeks after learning of [Ms B]’s pregnancy. He said that at the same time [Ms B] moved to the home of his sister in another province of Rwanda and remained with his sister after the birth of the applicant. The sponsor said he commenced study at a university in a town nearby to where his sister lived around a month after the birth of the applicant. He gave evidence that [Ms B] returned to her parents’ home in 2004 and shortly thereafter married for a second time to a man her family chose for her. The sponsor indicated that he was at no stage married to [Ms B], or in a formal relationship with her, as in his view she remained technically married to [Mr C] until the time of her second marriage.

26. The sponsor gave evidence that the applicant remained in the care of his sister after [Ms B] returned to her parents and remarried. The applicant told the Tribunal that he had regular contact with the applicant, visiting him on a near daily basis, and that notwithstanding his sister providing care for the applicant in her home he was recognised as the applicant’s father.

27. Documents provided with the review application include a marriage certificate regarding the marriage of [Mr C] and [Ms B], which states they were married on [date] February 1997. A death certificate issued in April 2004 for [Mr C] states that he was assassinated by unknown individuals on [date] November 1997. The applicant’s birth certificate, issued on [date] July 2013 and identifying the sponsor as his father, states the applicant’s date of birth was [date of birth]. An Extract of a Judicial Ruling to issue an Official Birth Certificate, dated [date] June 2013, provided a judicial ruling to replace the applicant’s birth certificate, explaining that a certificate could not be issued around the time of the applicant’s birth, as it was not possible for the sponsor and [Ms B] to register him in the births registry in due time. This document states the applicant’s date of birth is [date of birth].

1. The Tribunal has reviewed the photographs provided with the review application and notes they show the applicant at notable family occasions from shortly after the time of his birth. There is also photographic evidence to support the sponsor’s claim he travelled to the applicant’s bedside, from Australia, when he was hospitalised following a serious vehicle accident in 2018. In conjunction with evidence of financial support provided to the applicant by the sponsor and the numerous credible declarations and statements from relatives and friends attesting to their relationship, the Tribunal accepts the sponsor has taken responsibility for supporting the applicant since his birth in [year]. The Tribunal considers the sponsor’s claim that he has since being informed of [Ms B]’s pregnancy regarded himself as the applicant’s father to be both reasonable and plausible. Albeit that with the exception of a period of months in 2009 and 2010, when the sponsor and his current wife had the applicant in their care, the applicant spent his formative years in the care of the sponsor’s sister and has since that time resided in either a boarding school or in the home of the sponsor’s brother.

2. On considering the available evidence, the Tribunal finds that the visa applicant is not the biological child of the sponsor. However, this is no longer a determinative issue in relation to whether the applicant is potentially a dependent child of the sponsor, as s 5CA(1)(a) links the meaning of ‘child of a person’ under the Act to the meaning of ‘child of the person’ in the Family Law Act, as defined by s 5CA of the Act.

3. For visa applications made on or after 1 July 2009, the Family Law Act parentage presumptions are of relevance because of the definition of ‘child’ in s 5CA which states that a person is a child for the purposes of the Act if a person is a child of another within the meaning of the Family Law Act (except in relation to an adopted child under that Act). The presumptions include situations where:

   ·a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband;[2]

   ·a child is born to a woman and at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, and the woman cohabited with the man, to whom she was not married, that man is presumed to be the father;[3] and

   ·a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.[4]

   [2] Family Law Act s 69P

   [3] Family Law Act s 69Q.

   [4] Family Law Act s 69R.

4. The sponsor and the applicant’s mother, [Ms B], were at no stage married, therefore in the view of the Tribunal the applicant cannot be presumed to be the child of the sponsor on the basis that he was born whilst the sponsor was the husband of his mother.

5. Referring to permissible presumptions in the Family Law Act, the Tribunal considered whether the sponsor and [Ms B] were cohabiting during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth of the applicant on [date]. The evidence before the Tribunal, which it accepts, is that [Ms B] moved into the sponsor’s family home after the death of the sponsor’s foster brother, [Mr C] , which is recorded on a death certificate as occurring on [date] November 1997. In the written statement the sponsor provided in support of the review application, he states the death of [Mr C] occurred one week after the marriage, which took place on [date] February 1997. Whilst there is inconsistency in relation to the death certificate and the sponsor’s indication of when the death of his foster brother occurred, the Tribunal has not placed adverse weight on this inconsistency, as it does not in the view of the Tribunal present as a determinative issue. In light of the birthdate of the applicant being [date] and the indication that [Mr C] was his biological father, the Tribunal is satisfied the date of his death as recorded on the official death certificate, albeit issued some years later in 2004, is more likely to accurately reflect the date of [Mr C]’s death.

6. The sponsor’s statement, which was consistent with oral evidence received at hearing, is that [Ms B] was residing in temporary accommodation provided by a pastor immediately following her marriage to [Mr C], and then, following his death, moved next door to the small two-bedroom unit where the sponsor was living with three younger siblings. The sponsor states that [Ms B] informed him that she was pregnant a few weeks later and that he in turn fled to Uganda for a short time later out of concern for his personal safety. He said that [Ms B] moved to the home of another of his siblings, a sister, so as to distance her from immediate danger. The applicant returned to Rwanda, but not to the same residential location of [Ms B], shortly before the birth of the applicant in [year].

7. The Tribunal has reviewed the available evidence and for the purpose of determining whether the applicant is the child of the sponsor finds that his mother and the sponsor cohabited for a relatively brief period of time from a date no earlier than [date] November 1997. The Tribunal finds that the calculation of the date 44 weeks prior to the applicant’s date of birth provides the date of [date]. The Tribunal is satisfied that by the formulae outlined in the parentage presumptions the sponsor and [Ms B] cohabited during a period earlier than 44 weeks before the birth of the applicant[5] and as a consequence finds that the applicant cannot be presumed to be the child of the sponsor. 

   [5] Family Law Act s 69Q.

8. The Tribunal acknowledges that some ambiguity may exist in relation to when [Ms B] commenced habitation at the same location of the sponsor and that this could theoretically have some bearing on the parenting presumption detailed in s.69Q of the Family law Act. Whilst this is unlikely, given the date of death detailed in [Mr C]’s death certificate, the Tribunal has considered the circumstance where it was to be found that [Ms B] and the sponsor had cohabited within the time frame provided for in s.69Q. The Tribunal has reviewed cl.69U of the Family Law Act, which deals with the rebuttal of parenting presumptions and which states that:

   69U  Rebuttal of presumptions etc.

   A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities.

   (2)  Where:

   (a)   2 or more presumptions arising under this Subdivision are relevant in any proceedings; and

   (b)  those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings;

   the presumption that appears to the court to be the more or most likely to be correct prevails.

9. The results of the DNA testing establish the sponsor is not the biological father of the applicant. The Tribunal is satisfied that the presumption naturally flowing from these test results constitutes proof, on a balance of probabilities of a different presumption that the applicant is the child of the sponsor as a consequence of potential cohabitation of the sponsor and [Ms B] during the period prescribed in s69Q of the Family law Act.

10. The Tribunal notes that the documents provided by the sponsor includes an Extract Translation of a Judicial Ruling to Issue an Official Birth Certificate issued on [date] June 2013 by the Primary Tribunal of Huye[6]. A review of prescribed overseas jurisdictions[7] unfortunately does not list Rwanda as a prescribed overseas jurisdiction, for the purpose of permissible presumptions in s69R of the Family Law Act. As a consequence, the sponsor cannot under Australian law be presumed to be the parent of the applicant on the basis of the Rwandan judicial ruling which identified the sponsor as his father.

    [6] Primary Tribunal of Huye – Judicial ruling number: [deleted] – [date]

    [7] Schedule 1A—Countries or parts of countries, declared to be prescribed overseas jurisdictions for certain purposes, Family Law Regulations 1984,

11. There is no suggestion in this matter that the applicant is the adoptive child of the sponsor, or any other person. The sponsor gave evidence with regard to this factor, indicating that at no stage did he perceive there to be a reason to formally adopt the applicant, as his assumption was that he was the biological father of the applicant and therefore adoption as a pathway was an irrelevant consideration.

12. After reviewing the relevant provisions in detail, the Tribunal is unfortunately not satisfied the requirements of either s 5CA(1)(a) or s 5CA(1)(b) are met. The remaining provisions in s 5CA deal with circumstances where a child is conceived through artificial conception procedures such as in-vitro fertilisation or born under certain surrogacy agreements which are recognised under a prescribed State/Territory law as per the Family Law Act 1975 and are not relevant to the circumstances of this case. As a consequence, the Tribunal finds the applicant’s and sponsor’s relationship is not a child/parent relationship as defined in s 5CA and that flowing from this the applicant is not a child of the sponsor for the purpose of determining whether he could be found to be a dependent child of the sponsor.

13. In the interest of thoroughness, the Tribunal next considered whether, for the purpose of determining whether the applicant could be found to be a dependent child of the sponsor, the applicant is the step-child of the sponsor. The term ‘step-child’ as used in the definition of dependent child has its meaning defined in reg 1.03 step-child as:

    (a) a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or

    (b) a person who is not the child of the parent but:

    (i) who is the child of the parent's former spouse or former de facto partner; and

    (ii) who has not turned 18; and

    (iii) in relation to whom the parent has:

    (A) a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B) guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

14. The applicant is not the child of the sponsor’s current spouse or de facto partner and is over the age of 18 years. He can therefore unfortunately not meet required criteria to, for the purpose of considering whether he is a dependent child, be regarded as the step-child of the sponsor.

15. Accordingly, cl 101.211(1)(a) is not met at the time of application.

16. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

17. For the reasons outlined above, the Tribunal finds the applicant is not the child of the sponsor and is not the adopted child of the sponsor. As a consequence, cl 101.211(1)(c) is not met at the time of application.

18. For the reasons above, the criteria in cl 101.211 is not met.

19. 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).

    Ministerial intervention

20. During the hearing, the Tribunal expressed a provisional view that the applicant may not be able to meet cl 101.211 and invited the sponsor to consider whether this is an appropriate matter to refer to the Minister for consideration that a favourable decision be substituted pursuant to the powers in s 351 of the Act.

21. In extending this invitation, the Tribunal was mindful of the unfortunate circumstances of this case, where there appears no doubt as to the genuine nature of the enduring relationship between the sponsor and the applicant. The Tribunal is satisfied that from their perspective and from the respective of members of their communities, they are appropriately regarded as father and son. The Tribunal considers that it would be a most unfortunate outcome if there is an ongoing separation between the applicant and the sponsor and other members of the sponsor’s immediate family in Australia.

22. In the view of the Tribunal, this is a situation that would benefit from a resolution that is in the interests of the applicant and the sponsor. The Tribunal recommends the parties consider requesting the Minister to personally intervene in this matter.

    DECISION

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

    David Barker
    Member
    ATTACHMENT – RELEVANT LAW

    
    

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …