2007737 (Migration)

2007737 (Migration) [2021] AATA 1017 (27 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2007737
MEMBER:Brendan Darcy
DATE:27 January 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 of the Schedule 2 of the Regulation;
·cl.101.213 of Schedule 2 to the Regulations; and
·cl.101.221 of Schedule 2 to the Regulations.

The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 of the Schedule 2 of the Regulation; and
·cl.101.221 of Schedule 2 to the Regulations.

The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the third named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 of the Schedule 2 of the Regulation;
·cl.101.221 of Schedule 2 to the Regulations; and
·cl.101.226 of Schedule 2 to the Regulations.

Statement made on 27 January at 4:09pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – sole custody – DNA test establishes maternity – customary marriage not registered – husband/father died in remote village and death not registered – applicants’ birth certificates contain different name for father – corrupt practices by registry officials – dependency – money transfer documents confirming financial support – first applicant over 18 – continuing education – completed one year of diploma, then did not enrol in second year expecting visa to be granted – menial work for uncle in return for accommodation – consistent and detailed evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 101.211, 101.213, 101.221, 101.226; Schedule 4, PIC 4017, 4018
CASE
Hussain v Minister for Immigration [2017] FCCA 3247
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
For the purposes of this decision, the review applicant will be referred to as ‘the sponsor’; [the first-named visa applicant] will be referred to as ‘the first applicant’, [the second-named visa applicant] will be referred to as ‘the second applicant’, and [the third-named visa applicant] will be referred to as ‘the third applicant’.
The visa applicants applied for the visas on 22 March 2018. 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).
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.101.213, which sets out additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work and study, and cl.101.226, which requires Public Interest Criteria regarding custody and the child’s best interests are satisfied in relation to visa applicants who have not turned 18 at the time of decision.
The delegate refused to grant the visa to the first applicant, who had turned 18 at the time of application, on the basis that the sponsor provided insufficient evidence to demonstrate that cl.101.213 was met by the applicant in relation to continuing study and financial support. The delegate refused to grant the visa to the second and third applicants, who were not yet 18 at the time of decision, on the basis that cl.101.226 was not met because the sponsor did not provide sufficient evidence to demonstrate that Public Interest Criteria 4017 and 4018 were met in relation to the applicants.
The review applicant and visa applicants appeared before the Tribunal on 30 November 2020 to give evidence and present arguments via a teleconference facility. The Tribunal also received oral evidence from [Mr A], the sponsor’s family friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin English (PNG) and English languages.
The review applicant was also assisted by a registered migration agent or lawyer from Refugee and Immigration Legal Service.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The sponsor was born in Papua New Guinea (‘PNG’), where she is also a citizen, [on Date 1]. She was granted a Protection (XA-866) visa [in] October 2015 and became an Australian citizen [in] August 2020. The sponsor provided a copy of her Australian Citizenship certificate to the Tribunal. She claims to be the visa applicants’ biological mother.
The first, second and third applicants were all born in Port Moresby, the capital city of Papua New Guinea, on [Date 2], [Date 3] and [Date 4] respectively. All applicants are citizens of their country, which none of them have left since birth.
The delegate refused to grant the applicants Child visas on 20 February 2020.
The delegate’s decision notes that on 9 October 2019, the Department received the results of a DNA test from easyDNA, which confirmed the sponsor is not excluded from identification as the mother of the applicants.
The sponsor validly applied to have the delegate’s refusal decision reviewed by the Tribunal on 1 May 2020, attaching the Department decision record to the application.
In submissions made 22 November 2020, the sponsor’s representative asserted the test results, which were not on the Department file held by the Tribunal, confirms the sponsor is the biological mother of the applicants to 99.999999999998% probability for the first applicant and over 99.999999999999% probability for the second and third applicants.
Death of the applicant’s other parent
The Tribunal found the delegate’s decision somewhat disorganised and ambiguous while detailed. It is not clear to the Tribunal how the decision maker reached conclusions each of the applicants did not satisfy the legal criteria or which provisions in the Act and the Regulations prevented the grant of the visa.
As discussed in the hearing, the visas appeared to be refused, partially, on the grounds the delegate was not satisfied the sponsor had sole custody of the second and third applicants who were minors at the time of application and therefore not dependent children of the sponsor. The Tribunal accordingly proceeds to determine, as a finding of fact, about the deceased husband.
At the time of lodgement, the sponsor declared that the applicant’s father passed away [in] September 2015 and did not provide any death certificate. In a statement dated 20 February 2018, the sponsor stated that after her husband died, in December 2015 she told the applicants to leave their father’s village and go to [Village 1] so they could continue their education. She further declared that she sent money to the applicants for their food, clothing and shelter, via [Mr A], who is like an adopted son to her and lives in Port Moresby; on receipt of the money, he puts it into the account of people who live nearby the children. A letter from [Mr A], dated 4 February 2017, was attached, stating he receives money from the sponsor for her three children. The sponsor further declared that her children live with a couple she knows in [Village 1], by the names of [Ms B] and [Mr C] (‘the first carers’). She stated [Ms B] is her stepsister and that she doesn’t know [Mr C]’s surname.
In lieu of a death certificate, the sponsor provided a letter from a Councillor in PNG confirming the death of the applicants’ father. Later, following a request from the department, the applicant provided birth certificates that stated the names of the applicant’s father as [Mr D] and that the birth was registered [in] August 2017. She latter informed the Department in an email dated 4 December 2018 that the PNG Civil and Identity Registry Office would not assist her in obtaining a death certificate as the applicants’ father had died in the village. Death certificates, it was further argued, are only provided through medical reports when persons have died in hospitals.
The delegate raised another credibility concern: on the birth certificates submitted the father’s name is mentioned as [Mr D] but the letter confirming the death mentions the applicants’ father’s name as [Mr E].
In an email dated 25 March 2019, the sponsor stated there was an error in the applicants’ birth certificates, which she will re-do. In regards to the documents in relation to the father, she stated he died in a remote village where there is no hospital, police station, media service or electricity; it takes seven days and nights to walk from the village to town; when people die in the village their deaths are not registered; and only when they die in towns and cities are deaths registered. The sponsor provided new birth certificates for the visa applicants on the same date, stating the mother’s name as the sponsor and the father’s name as [Mr E]. These certificates recorded the applicants’ births were registered 16 October 2018.
Following this submission, on 9 May 2019, the Department requested the sponsor to provide a DNA test to establish maternity of the applicants due to their late birth registrations; a PNG court order as requested previously; a birth certificate of her deceased husband; a marriage certificate of her and her deceased husband; and a statutory declaration explaining:
·what she submitted to the PNG authorities to have the applicants’ father’s name changed from [Mr D] to [Mr E]
·why the father’s name is different on the death confirmation letter to the first birth certificates
·who [Mr D] is and whether she knows [Mr D].
On 21 May 2019, the sponsor sent the Department an email stating, inter alia, that she and the father lived separately until he passed away and that they were customarily married and had children together. She stated she could not access the father’s birth certificate or death certificate, nor the requested marriage certificate, and that she cannot access a court order due to the fact there is no death certificate.
On 22 August 2019, the sponsor provided a statutory declaration stating that the name of the father, [Mr D], stated on the initial birth certificates was an error made by the person handling their paperwork for processing the certificates at the Port Moresby registry. She declared the correct name of the father is [Mr E], which is now reflected in the recent certificates, and she did not use any authorities to make the change, as it was only an error. She stated there is no person by the name of [Mr D]; this name was entered mistakenly due to limited knowledge about her family’s names.
Relevant submitted evidence provided to the Tribunal regarding the death of the applicants’ father includes:
·Photographs pertaining to the death of the biological father, such as a ‘viewing’ of the deceased, the first applicant with other mourners; the third applicant with other mourners; the grave and burial of the deceased;
·A photograph of the sponsor with her former spouse dated 1999;
·The oral evidence of the first and third applicants that each of the applicants were present at their father’s funeral.
During the scheduled hearing, the sponsor was asked to provide further details about her marriage with the applicants’ biological father, her former husband’s death and the documentation about the marriage and death.
The sponsor claimed that that her marriage was a customary one that was not registered; that she came to Australia in 2012 and successfully applied for a protection visa on the basis of gender-based violence. Her children were left to the custody of the applicants’ father in their traditional village. The cause of her husband’s death in the remote Eastern Highlands province of PNG is unknown to her but many said it was due to being bewitched into ill-health and then death. With regards to the different names on the birth certificates originally submitted and the claimed the name of the spouse, the applicant explained that officials often deliberately mis-record names so that illiterate family members would eventually return and pay bribes to registry officials to change documents. The sponsor maintained that death certificates are not forthcoming for the deceased whose deaths occur outside of hospitals and away from medical professionals.
In assessing the evidence, cumulatively, the Tribunal finds there is insufficient evidence for it not to accept that the sponsor has not presented the evidence, as claimed. The Tribunal accepts the photographic and oral evidence as well as the written evidence, taken as a whole, to support the sponsor’s assertion that the father of the applicants passed away in 2015 in a remote part of PNG and no death certificate had ever been issued. The Tribunal also found the argument about corrupt practices in PNG, including at the registry responsible for birth and death certificates not to be a far-fetched one, given the prevalence of official corruption in that country. Had the sponsor been so disreputable or desperate to sponsor her biological children to Australian, she could have obtained the required documentation corruptly and fraudulently; instead, she had provided the evidence as it has come to her and presented plausible reasons for it. The Tribunal accepts the reasons for the discrepancy in the names of the applicant’s husband as presented differently between the originally submitted birth certificates and the Councillor’s letter.
The visa applicants’ father passed away in 2015, as consistently claimed since this visa was lodged and that the sponsor was the remaining biological parent of the applicants at the time of application.
Based on the abovementioned DNA results, there is no contention in this matter that the sponsor is not the biological mother of the applicant or that the sponsor was not a holder of an Australian permanent visa at the time of application. Therefore, the applicants are children - and not step-children, adopted or otherwise - of a holder of a permanent visa for the purposes of the time of application criteria under cl.101.211.
These findings of fact have been relevant to the applicants’ claimed status as dependent children of the sponsor who is an Australian citizen both at the time of application and at the time of making this decision under the relevant clauses.
Findings regarding the first applicant
The first applicant reached the age of 18 on [Date 5] – about [number of] months before March 2018 when this application was lodged.
The time of application criteria relevant in this matter is clause 101.211(1), that the first applicant is a dependent child of an Australian citizen, a holder of permanent visa or an eligible New Zealand citizen, who has otherwise not turned 25. Relevantly the Tribunal has considered regulations 1.03 and 1.05A.
The r.1.03 definition of dependent child is: 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.
As there is no claim the first applicant has turned 18 but is incapacitated for work due to the total or partial loss of his bodily or mental functions, the question is whether he is dependent on the sponsor as required by r.1.03(b)(i).
In relation to the first applicant’s marital status, the Department requested a letter from the Civil and Identity Registry Office in PNG confirming the first applicant is single, was never married and did not father any child. On 12 December 2018, the sponsor provided a letter from the Department for Community Development, dated 22 October 2018, stating the first applicant is single, was never married and did not father any child. The sponsor provided a further letter from the same department dated 13 May 2019. The delegate found both documents to be unacceptable evidence of the first applicant’s single status, without explanation.
During the hearing, both the sponsor and the first applicant attested that the applicant has never been engaged or married or has ever had a spouse.
The Tribunal has no third-party statements, independent documentary or other evidence that is to the contrary. Accordingly the Tribunal is satisfied the applicant meets r.1.03 at the time of application and at the time of decision.
Regulation 1.05A further elaborates on the meaning of dependency:
(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.
It is claimed by the sponsor in her written and oral evidence and supported by her submitted documentary evidence that since the death of the applicant’s father, the sponsor’s financial support to meet each of the applicants’ needs had been provided substantially before the application and on an ongoing basis.
As evidence of her financial support for the first applicant from [Date 5], the day the first applicant turned 18, as well as the other two visa applicants, the sponsor provided the Department with the following:
·Six [money transfer] receipts, one dated in 2016 and five dated in 2017, which the delegate found were such poor quality they were not readable as evidence, given the sender and receiver was not clear on the receipts.
·Evidence of the sponsor’s income, being Notices of Assessment for Australian tax purposes from 2015 and 2017, alongside payslips.
In her statutory declaration accompanying the application and in a further declaration dated 5 October 2018, the sponsor declared she is the only person supporting the applicant financially, and that she sends money to [Mr A], who is like an adopted son to her and lives in Port Moresby, who on receipt puts the money into the account of people who live nearby to her children. A letter from [Mr A] detailing the same accompanied the application.
On 22 August 2019, the sponsor provided the Department with a further statutory declaration that stated, inter alia, she financially supports the applicant via [money transfers], and as such there is no money transfer from her bank account to the applicant. The sponsor also provided [bank] statements to confirm this assertion.

The delegate found that the financial information submitted did not provide sufficient documentary evidence to confirm the sponsor has been financially supporting the first applicant since he turned 18.
Since this application for review, the sponsor has provided additional information including [the money] transfers, right up to the date of the scheduled hearing. The Tribunal also notes the first applicant’s oral evidence that he has not worked on a full-time basis, although he contributed to the subsistence economy while he remained in the Eastern Highlands after his father’s passing.
However, it is the Tribunal’s view that that the sponsor and the first applicant has provided sufficient evidence in a consistent and detailed manner and that there was no evidence to the contrary that the first applicant has not been working on a full time basis or that he had not been reliant primarily, on remittances from his mother residing in Australia for a substantial period before the time of application. The credible evidence before the Tribunal is that the first applicant is and has been for a substantial period immediately before the visa application was lodged, was substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter; and that the first applicant’s reliance on the sponsor was greater than any reliance on any other person for financial support to meet those basic needs, as required by r.1.05A(a)(i) and (ii), both at the time of application and continuously up to the time of making this decision. Therefore, the applicant meets regulation 1.015A at the time of application and on a continuous basis.
Accordingly, the first applicant satisfied cl.101.211 at the time of application.
Operation of clause 101.213
As the first applicant had turned 18 at the time of application, he also needed to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b). Clause 101.213 states relevantly
101.213
(1) If the applicant has turned 18:
(a) the applicant: (i) is not engaged to be married; and (ii) does not have a spouse or de facto partner; and (iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full-time work; and
(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
With regard to cl.101.213(a), the Tribunal has already made a corresponding finding that the applicant meets this under r.1.03 and cl.101.221. Accordingly, it accepts that the first applicant meets the criteria under cl.101.213(1)(a) at the time of application and continues to meet that criteria.
With regard to cl.101.213(b), the Tribunal has already made a corresponding finding that the applicant meets this under r.1.05A and cl.101.221.
However, cl.101.21(c) introduces an additional aspect for decision makers to consider under these circumstances.
In the representative’s submission, the education of the first applicant is outlined. It is explained that completion of secondary education in PNG is not the equivalent of year 12 in the Australian school system. Australia sits at number two on the UNDP education index, while PNG sits at number 157 on that index. It is widely acknowledged by journalists, scholars, aid agencies and service providers that in PNG, “limited classroom resources and a lack of trained teachers mean education quality remains low.” Given this low quality of education, the submission argues, the first applicant has not yet completed the equivalent of Year 12 in the Australian school system. The submission contends that in these circumstances he need not be in full time education and therefore meets subclause 101.213(1)(c) and 101.221(2)(b).
The first applicant, it is claimed by the sponsor, finished secondary schooling at [a named] School at the end of 2018. Documentary evidence of school attendance between 2015 and 2018 had been submitted. The first applicant then studies immediately in the 2019 school year commencing his first year of his [course] at [Institution 1]. On 9 February 2020, the sponsor wrote to the Australian diplomatic mission in [Country 1] (which was processing the visa application) asking for confirmation of whether the applicants could proceed with medical checks for the visa application or whether they should “register last minute for school.” No response was received from the embassy until the refusal notification was received on 26 February 2020.
The sponsor further elaborated that the first applicant in her statement provided to the Tribunal, the following:
“When the visas were refused [the first applicant] was very angry with me and did not want to talk to me. He switched off his phone for two weeks and I could not communicate with him. He told me that he did not want to listen to me. I was very worried about him because he was very depressed. [The first applicant] thought that his whole year was going to be wasted because he could not finish his [course] in 2020 like all of the school mates that he started with.
Because of all of this [the first applicant] has not been studying in 2020. Instead he has spent some time staying at home with his Uncle ([Mr F]). [Mr F] allowed him to stay at their house in exchange for helping him around their house doing concreting and other work. He has also been doing some volunteer community service work with [a] Church. The work he was doing was visiting people, praying. for them and singing at the Church. He was trying to make himself busy to take away the stress and to refresh his mind. I don’t know [the first applicant]’s mind. Because we are living in different places I can’t tell whether he has forgiven me or not because he has missed this year of his studies.”
In Hussain v Minister for Immigration & Anor [2017] FCCA 324713, it is not a requirement of 101.213(1)(c) when read with 101.221(2)(b), that an applicant has “been continuously involved” in study from the time of commencement referred to in cl. 101.213(1)(c) up to the time of decision. “It is not necessary to determine the extent of the qualitative assessment required in enquiring as to whether, in that time, the visa applicant’s conduct was appropriately characterised as having been undertaking a full-time course of study. Clearly however, the Tribunal ought to have regard to all relevant circumstances including, in particular, the nature and duration of a gap in study and any explanation for such a gap.”
The sponsor works in minimum wage employment in metropolitan Brisbane and has limited education. She has been fortunate to have the support of a not-for-profit migration agency. She informed the Tribunal that she has spent a considerable amount of her income on this visa application, DNA tests and remittances for the living expenses and tuition fees for her children. The first applicant has relied on his mother, primarily, but has received support of a local [church] community and family members. The gap in the first applicant’s education in 2020 has been exacerbated by the sponsor’s limited income, disappointment in the visa application process and the impact of the public health emergency arising from the COVID-19 pandemic.
Taken cumulatively into account, the Tribunal finds that the gap in the applicant’s post-secondary studies for vocational studies has been reasonably undertaken. Furthermore, the first applicant since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification for the purpose of cl.101.213(1)(c).
For the reasons above, cl.101.213 is met at the time of application. At the time of decision, cl.101.213 continues to be met.
Accordingly, cl.101.221(2)(b) is met in relation to the first applicant.
Findings regarding the second applicant
At the time of application, the second applicant had not reached the age of 18. A month after the application was lodged, the second applicant turned 18 on 8 April 2020.
The issue in the second applicant’s case is whether he meets clauses 101.211 and 101.221.
Clause 101.211 requires the applicant to be a dependent child of an Australian citizen. Australian permanent resident or eligible Australian citizen with the meaning of dependent child. Regulation 1.03(a) states that a dependent child of a person means the child or step-child of the person, being a child or step-child who has not turned 18.
As there is no claim the first applicant has turned 18 but is incapacitated for work due to the total or partial loss of his bodily or mental functions, the question is whether he is dependent on the sponsor as required by r.1.03(b)(i).
A letter from the Civil and Identity Registry Office in PNG supported the claim that the second applicant is single, was never married and did not father any child. On 12 December 2018, the sponsor provided a letter from the Department for Community Development, dated 22 October 2018, stating the first applicant is single, was never married and did not father any child. The sponsor provided a further letter from the same department dated 13 May 2019.
With no evidence to the contrary, the Tribunal finds that the second applicant, a minor at the time of application, meets criteria regulation 1.03(a) for the purposes of clause 101.211.
With regard to the definition of dependency under r.1.05A (discussed above), the sponsor has provided money transfer or remittance receipts dated between October 2016 and October 2020. She further detailed, both written and orally, how this money is transferred via trusted third parties to be used by and for the benefit of the visa applicants. One of the third parties who receives this money, [Mr A], provided consistent oral evidence at the scheduled hearing. The Tribunal has placed much weight on this evidence that financial support had been sent for the visa applicants, including the second applicant, to ensure that they have remained fed, clothed, and sheltered from a significant time before the time of the visa application until the present time.
In the same statutory declaration of 22 November 2020, the sponsor stated in relation to the second applicant’s studies, that he is currently in his second-last year of secondary school at the [named School], attaching a letter from the School confirming his studies. The letter, dated [in] November 2020, states that the second applicant is a Grade 11 student for the 2020 academic year. The sponsor stated the second applicant had his final studies for school exams on the week of the Tribunal hearing so he would not be available at the hearing, attaching a further letter from the School, dated [in] November 2020, confirming this.
In the declaration, the sponsor stated the second applicant stopped living in [Village 1] in April 2019 (the month the second and third applicants fled the home of the couple who were reportedly abusing them) and has been living with different people in [Town 1] since; she doesn’t know these people as the second applicant arranged the accommodation himself. Between April 2019 and November 2019, the second and third applicants lived together in [Town 1] with different people.
Reflecting the findings regarding the first applicant, the Tribunal found the evidence to be convincing that the second applicant has continuously been schooling on a long-term basis, that he has not been working on a full time basis and that he had been reliant, primarily, on remittances from this mother residing in Australia for a substantial period before the time of application. Although PNG is close to Australia, it is not safe for the sponsor to return. Despite these difficulties facing the sponsor to arrange shelter from afar, she has ensured shelter was provided. Based on the credible evidence before it, the Tribunal is satisfied that the second applicant is and has been for a substantial period immediately before the visa application was lodged, was substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter; and that the second applicant’s reliance on the sponsor was greater than any reliance on any other person for financial support to meet those basic needs, as required by r.1.05A(a)(i) and (ii), both at the time of application and on a continuous basis, right up to the time of making this decision. Therefore, the second applicant meets regulation 1.015A, both at the time of application and on a continuous basis.
As the Tribunal is satisfied that regulations 1.03 and 1.05A are met based on the available evidence regarding the second applicant, cl.101.211(1)(c) is met and continues to be met at the time of decision.
Accordingly, cl.101.221(1)(b) is met by the second applicant at the time of decision.
As the applicant has reached the age of majority, clause 101.226 is not applicable under the second applicant’s circumstances.
Findings regarding the third applicant
The third applicant was born on 24 April 2007. She was aged 11 years at the time of application and remains under the age of majority at the time of making this decision.
As the applicant was not aged 18 or over at the time of application and was receiving remittances via her mother, she satisfies regulation 1.03(a) for the purposes of cl.101.211.
The Tribunal has already made a number of findings that the second applicant is dependent on the sponsor for the purposes of regulation 1.05A(1)(a)(i) and (ii) at the time of application. The Tribunal accepts the third applicant shared the same or similar reliance on her mother for financial support to meet basic needs for food, clothing and shelter; and that the third applicant’s reliance on the sponsor was greater than anyone else for financial support to meet those needs. Therefore, the third applicant meets regulation 1.05A.
As the third applicant meets regulations 1.03 and 1.05A, the applicant satisfies clause 101.211.
With regards to clause 101.221(1)(a), the third applicant, as a minor, and with no substantial change in financial support and reliance on the sponsor since the time of application continues to satisfy clause 101.211.
It follows from this that the clause 101.221 is met in regard to the second applicant.
Operation of clause 101.213
A further issue in the third applicant’s case is whether she meets cl.101.226, which requires Public Interest Criteria (‘PIC’) 4017 and 4018 are satisfied in relation to an applicant who has not turned 18 at the time of decision. The third applicant was born on [Date 4]; she has not yet turned 18.
PIC 4017 requires the Minister is satisfied of one of the following: that the law of the applicant's home country permits the removal of the applicant, or each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.
PIC 4018 requires 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 applicant.
In legal submissions made 22 November 2020 to the Tribunal, the sponsor’s representative asserts that PIC 4017 is met when the relevant PNG law is considered, namely the Lakautim Pikini Act of 2015 (‘the LP Act’).
The representative argued that the LP Act gives the third applicant a positive right to live with her parents, that parents have the duties and authorities in relation to their children; and that parents take primary responsibility for meeting the daily care needs of the third applicant. The submission further argues that one of the objectives of the LP Act is to give effect to the UN Convention on the Rights of the Children. In short, the LP Act is the relevant law in Papua New Guinea which permits the review applicant to custody and removal of the third applicant. Exercising parental responsibility under the Act may be exercised by custom, deed or will, by way of a direction of the Director (senior public servant heading the relevant department for child welfare), or a court order in accordance with the Act.
The Tribunal accepts these arguments that the sponsor, as the sole surviving parent who has provided ongoing care to the applicants, does not require a court order for a minor child according to the laws of the third applicant’s country of origin. It accepts that without a death certificate, a court order is difficult to obtain. Given the Tribunal has made earlier findings, that it finds no mischief in the absence of death certificate or medical report pertaining to the applicants’ death, it accepts that the LP Act permits the sponsor to perform parent responsibilities in accordance to custom.
It follows from this the Tribunal is satisfied that the law of the third applicant’s home country permits the removal of the applicant; that the sponsor who can lawfully determine where the applicant is to live consents to the grant of the visa, as required by PIC 4017(A) or (B).
PIC 4017(C) is not relevant in relation to the third applicant.
With regard to PIC 4018, the Tribunal cannot find any evidence in which it would be invited to conclude that there is a compelling reason to believe that the grant of the visa would not be in the best interests. Therefore, Public Interest Criteria 4018 is met.
Accordingly, cl.101.226 is met in relation to the third applicant.
Conclusion
With regards to the first applicant, who had reached the age of majority at the time of application, the Tribunal is satisfied subclauses 101.211, 101.213 and 101.221(2)(b) are met.
With regards to the second applicant, who had not reached the aged of majority at the time of application but had reached the age of majority at the time of making this decision, the Tribunal is satisfied subclauses 101.211 and 101.221(1)(b) are met.
With regards to the third applicant, who is a minor child at the time of application and of decision, the Tribunal is satisfied subclauses 101.211, 101.221(1)(a) and 101.226 are met.
Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa in relation to each of the visa applicants.
DECISION
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 of the Schedule 2 of the Regulation;
·cl.101.213 of Schedule 2 to the Regulations; and
·cl.101.221 of Schedule 2 to the Regulations.
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 of the Schedule 2 of the Regulation; and
·cl.101.221 of Schedule 2 to the Regulations.
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the third named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 of the Schedule 2 of the Regulation;
·cl.101.221 of Schedule 2 to the Regulations; and
·cl.101.226 of Schedule 2 to the Regulations.

[2021] AATA 1017

27 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice