1936119 (Migration)

[2022] AATA 1523

1936119 (Migration) [2022] AATA 1523 (22 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1936119

MEMBER:Helena Claringbold

DATE:22 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 22 February 2022 at 1:57pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – remaining relative of an Australian relative – near relative – Indian Mizo community customary law practice “Sawn Man” – no payment made for legal parenthood – visa applicant’s remaining half-sister – applicant not acknowledged legally by his natural father – decision under review affirmed          

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2 cls 115.211, 115.221; rr 1.03, 1.15

CASES

Mercado v MIAC [2007] FMCA 1216

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. On 31 May 2016, [name], the visa applicant (the applicant), applied for an Other Family (Migrant) (Class BO) (Subclass 115) visa. The application was based on him being the remaining near relative of [name], the sponsor and the review applicant.

2. On 14 October 2019, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant was the remaining relative of an Australian relative, namely the sponsor. Therefore, the applicant did not meet cl.115.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).  On 21 December 2019, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.

3. At the time of visa application, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Regulations. In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

4. On 24 November 2021, the sponsor appeared before the Tribunal to give oral evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and [the sponsor’s husband].

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and completely, all of the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in this case is whether the applicant, at the time of application, was the remaining relative (as defined), of an Australian relative within the meaning of r.1.15 of the Regulations.

   BACKGROUND

8. The applicant was born in [year] in India. His mother, stepfather and two stepsiblings live in Australia. [In] 1998, his biological father died.  [Sister A] his half-sister was born in [year].  She lives in India.  His paternal grandparents also live in India.  

9. The sponsor was born in [year] in India. [In] February 2007, she entered Australia as the holder of a [student] visa. [In] May 2011, she married [her husband]. There are two children of this relationship. [In] August 2015, the sponsor became an Australian citizen by grant.

   Is the visa applicant a remaining relative of an Australian relative?

10. To be granted a Subclass 115 visa the visa applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application and continue to be a ‘remaining relative’ at time of decision: cl.115.211 and cl.115.221 of Schedule 2 to the Regulations. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

11. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

12. Broadly speaking a visa applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the visa applicant and is ‘usually resident in Australia’.

13. The visa applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the visa applicant is an adopted child.

    No near relatives: r.1.15(1)(c)

14. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

15. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or stepchild, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

16. The applicant provided information about the composition of his family members as follows:

    ·[Father A], biological father, deceased.

    ·[The review applicant’s maiden name], born [in year], biological mother, living in Australia.

    ·[The review applicant’s husband], born [in year], stepfather, living in Australia.

    ·[Name deleted], born [in year], half-brother, living in Australia.

    ·[Name deleted], born [in year], half-sister, living in Australia.

    ·[Name], paternal grandmother, living in India.

    ·[Name], maternal grandfather, living in India.

    ·[Uncle A], uncle, living in India.

    ·[Ms A], born [year], biological father’s partner, living in India.

    ·[Sister A], born [year], half-sister, living in India.

17. The visa applicant in his statements to the Department provided information including the following: between December 1994 and January 1995, his mother had casual contact with [Father A], his biological father. [Father A] had disappeared at the time of his birth. His mother married [her husband] [in] May 2011 and they have two children together. [Father A] had a partner, [Ms A variant]. They had a ‘Mizo’ customary wedding called ‘Man Hlan’. They didn’t have a document to support a legal marriage. The sponsor raised him until he was [age] years old at which time she went to Australia. While she was in Australia, he lived with his uncle [Uncle A] who is the sponsor’s brother. [Uncle A] was his legal guardian until he came of age.

18. In a statutory declaration dated September 2019, the sponsor provided the same information as given by the visa applicant about her relationship with [Father A]. In 2021, she advised that she changed her name to [include her husband’s name].

19. In an Indian Non-Judicial Affidavit dated September 2019, [the] visa applicant’s paternal grandfather stated the following: his son [Father A] and the sponsor have an illegitimate child [the applicant’s name].  [Father A] is the biological father of [the applicant].  [Father A] married [Ms A] [in] August 1996.  They married under the Mizo customary law by way of ‘Man Hlan’, therefore there are no documents or marriage certificate.

20. In an Affidavit dated 2016, [Uncle A] declared that he is the legal guardian of the visa applicant.

21. In an undated statement the sponsor provided the following information: she was incorrectly advised that she had to provide the name of the visa applicant’s biological father.  Up until that time the visa applicant’s father’s name had not been recorded on any of his official documents. She raised the visa applicant and his biological father didn’t recognise him. They lodged the visa application so that their family could be together. As his parents they consider it in the visa applicant’s best interests that he lives with them in Australia.

22. In a statutory declaration dated November 2021, the sponsor provided information including the following: she belongs to the [named] clan in the Mizo Tribe in Mizoram, India. The Mizo community have a customary law ‘Sawn Man’ which means ‘Price for an illegitimate child’. The substance of this customary law is that the biological father pays ‘Sawn Man’ to accept an illegitimate child to be his legal child and become the legal father of the child. She had sexual intercourse with [Father A] resulting in the birth of the visa applicant. After their first and last sexual interaction she had no further involvement with [Father A]. When her parents realised, she was having a child they sent words to [Father A’s] family.  Her father received a response that [Father A] was not ready to become a parent and wanted to continue his study. There has been no offer to pay ‘Sawn Man’ to make [Father A] or his family the legal parent of the visa applicant, therefore, making the sponsor the sole legal parent of the visa applicant. She gave the visa applicant her name and this is recorded in his legal documents such as his birth and baptismal documents and his passport. As [Father A] did not pay ‘Sawn Man’ the visa applicant is not his legal son and the visa applicant became hers. The sponsor stated that therefore, [Sister A], the legal daughter of [Father A] is not the half-sister of the visa applicant.

23. In an ‘India Non Judicial’ statement dated November 2021, [the] visa applicant’s maternal grandfather declared the following: when he discovered the sponsor was pregnant with the visa applicant, he sent representatives to [Father A] and his family to enquire whether they intended taking responsibility for his daughter’s pregnancy either through marriage or by the Mizo custom of ‘Sawn Man’ ‘a Mizo customary fine of Indian Rupees 40/- paid by the biological father of an illegitimate child to the mother’s family to claim the  child.’ He received a response that [Father A] was not ready to be a parent and wanted to continue his studies. The ‘Sawn Man’ was not paid and the visa applicant was not acknowledged or claimed as the legal child of [Father A]. This made the sponsor the only legal parent of the visa applicant. Chapter 8 Sub Section 3 of the Mizo customary Law notified in the Official Gazette by the Law and Judicial Department of the Government of Mizoram, India dated 4 April 2005 in regard to the acknowledgement of a son/daughter born out of wedlock provided that ‘Payment of customary fine by biological father of illegitimate child. The family of the mother of an illegitimate child usually demands a fine from the father. If the father of the illegitimate child refuses to pay the fine, he cannot claim parentage and the child will belong to the mother permanently.  However, the fine not paid by the father because it was not demanded does not preclude him from being the biological father.’  The visa applicant was never the legal son of [Father A] and was never recognised by [Father A] as his legal son.

24. In an ‘India Non-Judicial’ statement dated November 2021, [Academic A], [from a named college] stated the following:  a translation of Chapter 8 Sub Section 3 of the Mizo Customary Law notified in the Official Gazette by the Law and Judicial Department of the Government of Mizoram dated 4 April 2005 provides that the mother of the illegitimate child usually demands a fine from the father.  If the father of the illegitimate child refuses to pay the fine to the mother, he cannot later claim parentage and the child will belong to the mother permanently. However, if the fine was not paid by the father because it was not demanded by the mother of the illegitimate child it does not preclude him from being the father.

25. In a statutory declaration dated November 2021, [Ms B] stated the following: she has known the sponsor since 1994 when she visited Mizoram, India. She has known the circumstances of the sponsor’s pregnancy with the visa applicant. The visa applicant’s biological father, at no point participated in the visa applicant’s life.

26. In a statement dated December 2019, [an identified local Member] stated the following: it has been reported to her that the sponsor raised the visa applicant who has never known his father who disappeared before the birth of the visa applicant. It later became known that the visa applicant’s biological father had a daughter with another partner. The visa applicant and his half-sister lead separate lives never knowing each other. It appears to her that the applicant is a remaining relative, despite the documentation that evidences otherwise.

27. A birth certificate dated [date] issued by the Government of Mizoram provided information about the birth of [Sister A] on [date].  Her father is recorded as [Father A] and her mother is recorded as [Ms A].

28. A death certificate dated [in] 1998 issued by [Hospital 1 in] Mizoram recorded [Father A’s] death [in] 1998.

29. The sponsor told the Tribunal the following: her association with the visa applicant’s biological father was casual and they were not in a relationship. When she found she was pregnant her father engaged Mizo Customary Law.  He requested Sawn Man which is a fine paid by the father when a child is conceived out of wedlock. Her father asked whether the biological father wanted to accept the child and received a response that the biological father didn’t want to have anything to do with the claim. He did not pay the Sawn Man and the visa applicant became hers legally. She did not have contact with the biological father and went through pregnancy and birth without his assistance. They lived with the sponsor’s family.  In 2007, when she came to Australia to study the visa applicant was [age] years old and in boarding school. She left him in the care of her older brother. In [year], when the visa applicant was [age] years old, he left the boarding school.  He continued high school education in Mizoram and completed [grade] when he was [age] years old.  He then studied in [Country 1] and completed a [qualification] in [Subject 1]. She knew about [Sister A] but only told the visa applicant about her during the visa process. She is the visa applicant’s only legal parent and wants him in Australia with her.

30. The Tribunal discussed with the sponsor the information before it as follows:

    ‘Sawn man’ is defined within the Mizo Marriage, Divorce and Inheritance of Property Act, 2014 (Act No. 9 of 2014) which provided the following information:

    ‘Sawn’ means illegitimate child and ‘sawn man’ means money that is ^ 40/- paid to the woman with whom a man has a child without getting married’.[1]

    It does not provide any information about the ramifications of a non-payment of ‘Sawn Man’ or that it severs the legal relationship between the father of an illegitimate child and the child.

    The Marriage and Divorce Law among Indigenous North East Tribes of India: Comparative Study of Mizoram and Meghalaya 2017 provided the following information:

    Where an illicit child is born, the one who fathered the child could easily free himself from all his responsibilities by paying the traditional ‘sawn man’ a token amount of Rs. 40 only.[2]

    The Tribunal notes here that a February 2021 article by the same author stated The Mizo society seems to have trivialised sexual intimacy between unmarried man and woman because in an event of an illicit child is begotten the person who had fathered is never held responsible towards the child welfare of the child but paying the traditional ‘sawn man’ a token amount of Rs.40 only he may claim proprietary right over the child’s person or personality.[3]

    The Journal of International Women’s Studies Vol. 9 #3 May 2008 provided the following information:

    If a man wishes to evade the responsibility of a child born out of wedlock, he simply pays an adequate fine called ‘Sawn man’ of rupees forty to the girl’s father or brother so as to avoid the liability of the child.[4]

    [1] ‘Mizo Marriage, Divorce and Inheritance of Property Act, 2014’, Chapter VIII, Section 31, Paragraphs 10-11, Mizoram Gazette, 4 December 2014, Chapter I, 3(w).

    [2] ‘Marriage and Divorce Law among Indigenous North East Tribes of India: Comparative Study of Mizoram and Meghalaya’, Tombing, T, National Law University and Judicial Academy, January 2017, p.1. See also p.2 ff for information about customary laws such as marriage, divorce and inheritance.

    [3] ‘Comparative Legal Analysis of Indigenous Customary Institutions among Mizo, Khasi and Paite Tribes of North East India’, Tombing, T., National Law University and Judicial Academy, Contemporary Law Review, Volume 4, Number 1, February 2021 pp.177-178, 20211124083123

    [4] ‘Emergence of Women from ‘Private’ to ‘Public’: A Narrative of Power Politics from Mizoram’, A S Chakraborty, Journal of International Women’s Studies, Volume 9, Issue 3, May 2008, p.30.

31. The sponsor referred the Tribunal to her statutory declaration dated November 2021 and the India Non-Judicial’ statement dated November 2021 from [Academic A].  The sponsor stated that [Academic A] helped with the translation of Chapter 8 Sub Section 3 of the Mizo Customary Law notified in the Official Gazette by the Law and Judicial Department of the Government of Mizoram dated 4 April 2005 which provides that the mother of the illegitimate child usually demands a fine from the father.  If the father of the illegitimate child refuses to pay the fine to the mother, he cannot later claim parentage and the child will belong to the mother permanently. However, if the fine was not paid by the father because it was not demanded by the mother of the illegitimate child it does not preclude him from being the father.

32. The sponsor told the Tribunal that her evidence is that the biological father stated that he was not ready to marry and wanted to continue his study and he did not pay ‘Sawn Man’. She has supported and been responsible for the visa applicant since his birth. She does not have any legal documents and has not gone through any legal process to support the severing of the biological father’s relationship with the visa applicant.

33. The visa applicant told the Tribunal that he didn’t have any relationship with his biological father or his paternal family. However, when he returned from study, he visited his paternal grandmother on a few occasions. He has been with the sponsor since birth.  When he was [age] years old, he went to boarding school and left there when he was [age] years old. He finished high school in Mizoram when he was [age] years old. [Between specified years] he studied [Subject 1] in [Country 1]. He was unaware of [Sister A] and only found out about her during the visa application process. In February 2020, he entered Australia as the holder of a visitor visa and because of the COVID-19 pandemic restrictions has been unable to leave.

34. [The review applicant’s husband] told the Tribunal the following: when he met the sponsor there was no mention of the visa applicant’s paternal family. When he and the sponsor travelled to Mizoram for their wedding celebration the applicant’s paternal family were not mentioned. When the visa application was refused, they talked about the visa applicant’s paternal family. The visa applicant had no connection with his biological father or his paternal family.  He has not met [Sister A]. He is disappointed that the visa applicant was not included in the sponsor’s visa application. The visa applicant is a well-balanced young man and would be a benefit to Australia.  He is part of their family and loved by his Australian half-siblings.

1. On 24 November 2021, the sponsor provided the Tribunal with a copy of The Mizoram Gazette Published by Authority Regn. No. NE-313(MZ) VOL - XXXIV Aizawl, Wednesday 6.4.2005 Chaitra 16, S.E. 1927, Issue No. 66 Notification No.H. 12018/119/03-LJD/62, the 4th April 2005. The Mizo Customary Law is hereby published for general information. Sd/-.  She referred the Tribunal to page 25. While the cover page of the document is in English, the content of the document is in a language other than English and cannot be read by the Tribunal. On 24 November 2021, the Tribunal telephoned the sponsor and advised her that the document she provided is in a foreign language and cannot be read by the Tribunal. The sponsor advised the Tribunal that she had difficulty in identifying a translator in the relevant language because it is a rare language. This is why she had her friend [Academic A] translate the section of the document however she is not a registered translator. The Tribunal investigated extensively to source an English language version of this document, without success.

2. Although the Tribunal is empathetic to the circumstances of this case, the remaining definition does not allow consideration of subjective matter such as the quality of familial relationships.

3. The claim before the Tribunal is that the applicant’s father did not follow Mizoram customary law and did not comply with the requirements of the ‘Sawn Man’ and therefore was not the legal father of the applicant. However, beyond the claims made by the sponsor and some of her witnesses, there is no independent evidence or information about the applicant’s biological father severing parental ties with the applicant or whether the biological father’s parental responsibility has been removed by customary law.  There is no independent evidence from any court in Mizoram or the Republic of India of any process undertaken that ceased the legal relationship between the applicant’s biological father or evidence that any order or direction was made in the applicant’s interest. There is conflicting information and claims about the customary law of Sawn Man.  It is unclear whether the Sawn Man not being paid means that the applicant’s father retained parental responsibility or whether as the sponsor alleges, he has acquiesced his legal parental right. There is no evidence that the customary Sawn Man had the capacity to legally remove the parent/son relationship between the applicant and his biological father. In this case the applicant’s biological father went on to have a daughter as a result of a relationship.  The Tribunal notes the approach of the court in Mercado v MIAC [2007] FMCA 1216 that the reference to ‘brother’ included a reference to ‘half-brother’. By inference, the reference to ‘sister’ may also be taken to include a reference to ‘half-sister’. Therefore, that daughter is the applicant’s half-sister regardless of the nature of the relationship. This results in the applicant having a near relative as defined in r.1.15(2) of the Regulations. While the Tribunal is sympathetic to the circumstances of this case it does not have the discretion to waive the near relative requirement as defined in r.1.15(2) of the Regulations.

4. Consequently, [Sister A] is a ‘near relative’ as defined in r.1.15(2). As a result, the applicant has a near relative other than those who are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. There are no exemptions to the definition of near relative in r.1.15(2). Therefore, the applicant does not meet r.1.15(1)(c) of the Regulations.

5. There is no evidence that the applicant satisfied any alternate criteria for the grant of the visa.

6. Therefore, at the time of application, the applicant was not a remaining relative of the sponsor. As a result, the applicant does not meet cl.115.211 of Schedule 2 to the Regulations.

7. At the time of decision, the applicant continues not to be the remaining relative of the sponsor. As a result, the applicant does not meet cl.115.221 of Schedule 2 to the Regulations.

8. For the reasons above, the applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the criteria for the visa sought.

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

   Helena Claringbold
   Member

   
   

   ATTACHMENT - Extracts from the Migration Regulations 1994

   1.15     Remaining relative

   (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

   (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

   (b)the other person is usually resident in Australia; and

   (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

   (i)usually resident in Australia; and

   (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

   (d)if the applicant is a child who:

   (i) has not turned 18; and

   (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

   at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

   (2)In this regulation:

   near relative, in relation to an applicant, means a person who is:

   (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

   (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

   (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

   (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).