2214671 (Migration) - [2023] AATA 1067

2214671 (Migration) [2023] AATA 1067 (24 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Grace Gatbonton-Prince (MARN: 0639454)
CASE NUMBER: 2214671

MEMBER:Maxina Martellotta
DATE:24 April 2023
PLACE OF DECISION: Perth
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 24 April 2023 at 8:28am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – law of the applicant’s home country permits the removal – consent of relevant parties – best interests of the applicant – sole legal custody rights – visa applicant moved between countries – common law presumption of death – father’s family connections unknown – no legal filiation link to the father – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.226; Schedule 4, Public Interest Criterion 4017; r 1.03
CASES
Axon v Axon (1937) 59 CLR 395
Chard v Chard [1955] 3 All ER 721
Kim v MIAC [2011] FMCA 780 (2011) 254 FLR 19
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 16 August 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 February 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.226. This clause requires that at the time of decision, if the applicant has not turned 18 then public interest criteria (PIC) 4017 and 4018 are satisfied in relation to the applicant.
PIC 4017 provides:
The Minister is satisfied of 1 of the following:
(a) the law of the applicant’s home country permits the removal of the applicant;
(b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa;
(c) the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.
PIC 4018 provides:
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.
The delegate refused to grant the visa on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2214671 (Migration) [2023] AATA 1067
Case: [2023] AATA 1067
Decision Date: 24 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101. The applicant, an Australian permanent resident, sought to have her child, born in Eritrea, join her in Australia. The central dispute revolved around whether the visa applicant met the requirements of clause 101.226 of Schedule 2 to the Migration Regulations, which pertains to the consent of relevant parties and the best interests of the child, particularly in circumstances where the child's father was unknown or uncontactable.

The Tribunal was required to determine if the visa applicant satisfied clause 101.226, specifically addressing the consent of the child's father and whether the child's best interests were met. This involved assessing the evidence presented regarding the child's conception, the mother's marital status at the time, the father's identity and whereabouts, and the practicalities of obtaining parental consent or legal custody orders in the child's home country. The Tribunal also had to consider the common law presumption of death in relation to the father, given the lack of contact and unknown status.

In its reasoning, the Tribunal acknowledged the applicant's evidence that the child was conceived from a single encounter with a man named [Mr A], with whom she had no further contact and whose whereabouts were unknown. The applicant explained that she registered [Mr A] as the father due to cultural norms and to avoid the stigma of a child born outside of marriage, despite her Christian faith and her then-husband's refusal to include the child in their refugee visa application. The Tribunal noted the applicant's inability to obtain sole legal custody due to her departure from Eritrea and her mother's concerns about attracting adverse attention. The Tribunal found that the applicant had made extensive efforts to locate [Mr A] and satisfy the Department's requirements. Given the circumstances, including the child and the applicant's mother being in Sudan and unable to return to Eritrea, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration, with a direction that the visa applicant meets the criteria under clause 101.226 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the visa applicant satisfies cl 101.226. The Tribunal is satisfied that documents and information contained in the Department file and the review applicant’s oral evidence and submissions confirm the following facts and the Tribunal finds:a)The review applicant was born in Eritrea. b)In 2008 the review applicant married, and she left Eritrea for Sudan.c)In 2009 the review applicant’s first child (S) was born. The biological father of S was the review applicant’s then husband.d)In 2010 the review applicant returned to Eritrea without her husband. Whilst in Eritrea the visa applicant was conceived. The review applicant claims that the biological father of the visa applicant is [Mr A].e)The visa applicant was born in [year] in Eritrea.f)The review applicant is his biological mother.g)The review applicant is an Australian permanent resident.h)In 2016 the review applicant and her son S were granted a Class XB Subclass 200 Refugee visa. She and her first child S settled in Australia with her then husband.i)The visa applicant was not included in the refugee visa application.j)Since settling in Australia the review applicant and her husband separated and are now divorced. The review applicant provided the following evidence:a)The visa applicant was conceived as a result of a single sexual encounter with [Mr A]. Since that encounter in 2014 she has not had any contact with [Mr A], and she has been unable to locate him. She does not know if he is dead or alive.b)She has limited knowledge or information about [Mr A] other than his name and that he is Muslim. c)She can only assume the reasons why [Mr A] has not contacted her. This may include the fact that as she is a Christian and was married, it would be haram for [Mr A] to have had sexual relations with her.d)Despite these circumstances she registered [Mr A’s] details as the child’s father because this is consistent with cultural norms, and it was important to name a father to avoid possible denigration of having a child outside of her marriage and also because she is Christian.e)As part of the visa application process, she has made many attempts to locate [Mr A] including seeking the assistance of the Red Cross.f)Her then husband refused her permission to include the visa applicant in the family refugee application to Australia. Her then husband said that once she arrived in Australia, he would support her in her efforts to bring her child to Australia. This did not eventuate. Their relationship became violent, and she left the relationship with her eldest child.g)Due to these circumstances, she left the visa applicant in the care of her mother who has taken care of him with the intention that the review applicant would make application for him to join the family. Once she was able to find employment in Australia, she began providing her mother money for her child.h)She has been unable to obtain any form of court order to confirm her sole custody of the visa applicant due to the circumstances in which she left Eritrea and her mother was unable to obtain any such order on her behalf. She held genuine concerns that her mother seeking such an order would draw the attention of authorities to the family’s detriment.i)She has tried all avenues to satisfy the Department’s requirements.j)Since 2022 with her assistance, her mother and the visa applicant have been in Sudan. They are unable to return to Eritrea. The deteriorating situation in Sudan is of great concern and she holds fears for her child and mother.k)[Mr A] has never had any involvement or contact with the visa applicant. She has been the only person responsible for making decisions for her child which she has in effect delegated to her mother during her absence.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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.Maxina MartellottaMember

Ratio Decidendi

Legal Principle Established

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