2016355 (Migration)

[2021] AATA 2979

2016355 (Migration) [2021] AATA 2979 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016355

MEMBER:Andrew McLean Williams

DATE:22 July 2021

PLACE OF DECISION:  Brisbane

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

·cl 101.226 of Schedule 2 to the Regulations.

Statement made on 22 July 2021 at 11:22am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – consent of each person who can determine where child is to live – parents divorced, with father now review applicant – no contact with mother, whereabouts unknown – applicant under guardianship of great-uncle, who consents – customary law gives custody of children of divorced parents to father’s family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.226, Schedule 4, criterion 4107

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 2 October 2020 refusing to grant the visa applicant a Child (Migrant) (Class AH) visa, under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. [The child visa applicant] (DOB [Date]) had applied for the visa on 31 December 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).

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, these include cl 101.226, which is a time of decision criterion. This provides that in circumstances wherein the applicant child has not yet turned 18, public interest criteria (‘PIC’) 4107 and 4018 must be satisfied, in relation to the applicant.

4. The delegate refused to grant the visa on the basis that cl 101.226 was not met because of concerns that [the applicant]’s circumstances did not satisfy PIC 4017. PIC 4017 requires that the law of the Applicant’s home country (in this instance Myanmar) permits the removal of the child applicant, or that each person who can lawfully determine where the child applicant is to live has provided their consent to the grant of the visa.

5. [The review applicant] is [the visa applicant]’s biological father. [The review applicant] appeared before the Tribunal in person on 10 June 2021 to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Chin and English languages.  The Tribunal also notes that when this matter was originally before the delegate the application was supported by a legal submission dated 7 December 2018 prepared by [Refugee services provider].  [The submission] remains a relevant document for consideration.  The Tribunal has had regard for that document and accepts the contentions advanced therein on behalf the review applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether [the visa applicant] - a now [Age 1] year old boy currently living under the guardianship of his paternal uncle in a rural village in the Chin State in Myanmar - satisfies the requirements of PIC 4017.  

8. [The visa applicant]’s father, [is the review applicant] and now resides in Australia.  [The review applicant] is the holder of a [Specified] visa which was granted to him on 4 June 2012. 

9. [The review applicant] was born in Myanmar as [Birth name], yet on 13 September 2016 (and by now residing in Australia), he legally changed his name to [the review applicant].  He has applied - on [the visa applicant]’s behalf - for a Child (Subclass 101) visa in order that [the visa applicant] may now come to live with him in Australia, for reasons that will be elaborated later in these reasons.

10. [The review applicant] had - when still living in Myanmar - been married to a [Ms A], who is [the visa applicant]’s mother.  They divorced [in] January 2015.  At that time [the visa applicant] was aged only about [Age 2].  [The visa applicant] has not seen or heard from his mother, or his older brother and sister, since about mid 2016 when [Ms A] left the village. 

11. The application for a child visa was submitted on 31 December 2018 when [the visa applicant] was aged about [Age 3].  A divorce certificate had been included as part of the supporting documentation, as had an affidavit from [Mr B] ([the review applicant]’s paternal uncle), thereby giving his consent for [the visa applicant] to relocate to Australia.  However, the visa application supporting documentation did not include anything from [Ms A], indicating her consent – as [the visa applicant]’s mother – for her child to relocate to Australia. 

12. When this matter came before a Delegate for determination the visa application was refused, on the basis that the application did not satisfy PIC 4017, as the Delegate could not be satisfied that either the laws of Myanmar allowed for the removal of [the visa applicant] to Australia, or that (b), “each person who can lawfully determine where the applicant is to live consents to the grant of the visa”.  Here, the specific concern raised by the Delegate was that there was no evidence that [Ms A] had provided her consent (as [the visa applicant]’s mother); or that there was other evidence that [the review applicant] had been granted sole custody over his son [the visa applicant].  

13. The evidence heard before the Tribunal reveals that [the review applicant] is a member of the Chin ethnic minority group in Myanmar (Burma) and is a Christian, and member of [a] Church.

14. [The visa applicant] was born in [a] village Myanmar on [Date].  At that time [the review applicant] had already fled to [Country] and was living in a refugee camp.  [The review applicant] was married to [Ms A] and they already had two children, a son and a daughter.  [The review applicant] and his wife [Ms A] were impoverished subsistence farmers in [the] village.

15. Prior to the birth of their third child ([the visa applicant]), [the review applicant] was press-ganged by the Myanmar Military to serve as an unpaid porter, forcibly required to carry bags of rice and munitions for the military.  As he was always working for the military, and without payment he was unable to work in the fields in order to provide for his family.  In these circumstances [the review applicant] resolved to flee from Myanmar when an opportunity arose, thus eventually arriving at a refugee camp, in [Country].  At the time of his departing Myanmar, [Ms A] was already pregnant with [the visa applicant], and [the visa applicant] was thereafter born whilst [the review applicant] was a refugee in [Country].  In fact, [the review applicant] has never met his son in person, although he has spoken to [the visa applicant] regularly by telephone and by video on ‘[social media]’. [The review applicant] has also continued to remit money to Myanmar for the ongoing support of [the visa applicant].

16. After  [the review applicant] escaped to [Country], his wife [Ms A] and their two older children continued to live in [the] village with [the review applicant]’s uncle [Mr B], and some other relatives, including [the review applicant]’s mother, [Ms C], and father, [Mr D}.  It was during this period that [the visa applicant] was born. 

17. [The review applicant] was working whilst a refugee in [Country] and tried to stay in contact with his wife and children as best he could, as well as to remit money to them for their support.  In June 2013, and by now in Australia, [the review applicant] applied to bring his wife [Ms A] to Australia.  However, in around 2014, [Ms A] moved out of the house in [the] village where she had been living with [Mr B], at that time also taking her two older children with her.  The last time that [the review applicant] managed to speak with his wife was in about November or December of 2014, at which time she asked him for a divorce.  By that stage, [the review applicant] had been informed by others in the village that [Ms A] was in a new relationship with another man and was no longer remaining faithful to him.  [The review applicant] and [Ms A] were subsequently consensually divorced, in January 2015. 

18. When [Ms A] left the village, [the visa applicant] was aged only about [Age 2].  He did not wish to leave with his mother and elder siblings, due to his very strong emotional attachment to his grandparents and uncle.  In these circumstances [Mr B] managed to persuade [Ms A] that she should leave [the visa applicant] behind with his grandparents.

19. Since her departure from [the] village it is thought that [Ms A] might be living in [Location], Kachin State in Myanmar, yet this is not known for certain and there is no effective way to make inquiries.  Even her own mother [Ms E] (who remains living in [the] village) has not since heard from [Ms A].  [Ms E] informs by declaration that she believes that her daughter left for the Chinese border region during March 2016 together with her eldest son and daughter in search of employment, and that she has not heard from them since.

20. After the death of [the visa applicant]’s grandfather [Mr D], his grandmother [Ms C] became infirm in consequence of her suffering from a paralytic stroke.  Thereafter, and in accordance with Chin customary law, responsibility for guardianship over [the visa applicant] fell to [Mr B], who is the younger brother of [Mr D] and also [the review applicant]’s paternal uncle, and hence stands in the role as paternal granduncle to [the visa applicant].  [The visa applicant] is now aged about [Age 1] and continues to live in [the] village in Chin State Myanmar together with his grand uncle [Mr B], and also his elderly and now infirm grandmother [Ms C].

21. There is satisfactory evidence before the Tribunal that each of grandmother [Ms C] and grand uncle [Mr B] have given their consent for [the visa applicant] to travel to Australia in order to live permanently with his father [the review applicant]. 

22. The Tribunal is also satisfied that, in accordance with Chin customary law that after the divorce of his parents [the review applicant] and [Ms A], custody of [the visa applicant] remained with the paternal family, and that [Mr B] became the legally recognised guardian of [the visa applicant], such that [Mr B] became the person in Myanmar with lawful authority to determine where [the visa applicant] may live. 

23. The fact of [Mr B] having signed the form 1229 (‘Consent to grant an Australian visa to a child under the age of 18 years’) is now sufficient for purposes of Public Interest Criteria 4017.  

    DECISION

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

    ·cl 101.226 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    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.

    …