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

1. 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).

2. 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).

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 101.226. 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.

4. 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.

5. 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.

6. The delegate refused to grant the visa on the basis that cl 101.226 was not met because the applicant did not satisfy PIC 4017. In particular, the delegate concluded that whilst they accept that the review applicant has been the visa applicant’s sole parent, they concluded there was no evidence to determine that she has sole legal custody rights, nor was there any official document stipulating that she has such rights and finally there is no court order giving permission for the child’s removal from his home country of Eritrea.

7. The review applicant appeared before the Tribunal on 11 April 2023 by video conference, to give evidence and present submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. In addition to oral evidence and submissions received at hearing the Tribunal has also considered materials contained in the Department file and materials provided to the Tribunal by the review applicant.

8. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the visa applicant satisfies cl 101.226.

11. 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.

12. 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.

13. Documents provided to the Department and to the Tribunal were consistent with the review applicant’s evidence. These documents included:

    a)Copy of the visa applicant’s birth.

    b)Copy of the visa applicant’s UNHCR identity card.

    c)Money transfer receipts from the review applicant to her mother.

    d)Information provided by [Agency 1] arising from the review applicant’s referral to that service.

    e)Statutory declarations made by the review applicant detailing efforts to locate [Mr A] and to seek relevant orders.

    f)Correspondence from the Australian Red Cross confirming the approach made by the review applicant to trace [Mr A] but being unable to assist due to insufficient information.

14. The review applicant’s representative made the following written submissions:

    a)The only provision of PIC 4017 that the visa applicant is able to satisfy and does satisfy is paragraph (b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa.

    b)The visa applicant cannot satisfy paragraph (a) of PIC 4017 as he has left Eritrea without permission of his home country and is a refugee in Sudan. His mother, the review applicant, cannot seek orders in Eritrea for these reasons.

    c)The visa applicant satisfies PIC 4017(b). There has been no contact with [Mr A] since 2014 despite genuine attempts to locate him. This is now nearly nine years.

    d)In such circumstances and particularly given the existing political, social and humanitarian situation in Eritrea the common law presumption of death should be applied.

    e)On the basis of that presumption, the review applicant is the only person with the sole right to decide where the visa applicant is to live, and the consent of [Mr A] is not required in such circumstances.

    Presumption of death submission

15. The common law presumption of death is commonly expressed as follows:

    If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of, by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or have learned of his whereabouts, were he living then, in the absence of evidence to the contrary, it should be found that he is dead.[1]

    [1] Axon v Axon (1937) 59 CLR 395 at 405.

16. In circumstances where a person has been missing for seven years or more, consideration should be given to the whole circumstances of the case and the respective probabilities of life continuing and having ceased need to be balanced. This would include whether other persons were likely to have received contact from the person presumed dead, what inquiries were made, the circumstances in which the person in question was last known to be alive and any other relevant (and reasonable) factors.[2]

    [2] See Chard v Chard [1955] 3 All ER 721 in which Sachs J outlined the factors leading to a person being presumed to have died as ‘where there is no acceptable affirmative evidence that the person was alive at some time during a continuous period of seven years or more; there are persons who would be likely to have heard of him over that period, who have not heard of him; and all due inquiries have been made appropriate to the circumstances.’ The judgment of Chard v Chard is not binding on the Australian courts and while various Australian courts have adopted the same approach, the High Court in Axon v Axon (1937) 59 CLR 395 did not include a duty to inquire in its approach.

17. In this case, the evidence presented by the review applicant is that in effect whilst she knew [Mr A’s] name and that he was Muslim her interactions with him were limited to that one sexual encounter after which she never heard from him again. This has made it very difficult to locate his whereabouts.

18. These circumstances in the Tribunal’s view, does raise the question of whether or not the review applicant would have expected, or whether it would have been likely for her to have received further contact from [Mr A] given the circumstances of their interaction. As noted by the review applicant’s own evidence, it may be that [Mr A] was afraid to maintain contact because she was married and a Christian. Further the Tribunal notes that this is not a case in which there is evidence that [Mr A’s] family and associates have provided evidence that he has not been in contact with them – the review applicant states that she does not know his family connections.

19. Considering all the circumstances as presented in evidence the Tribunal does not make a finding of fact that [Mr A] is dead notwithstanding that the review applicant has not had any contact with him since that one occasion in 2014.[3]

    PIC 4017

    [3] Following the Court’s decision in Kim v MIAC[3] the Tribunal should take into account the rebuttable presumption where a person has been missing for seven years or more, and having done so, make its own finding of fact. However, the common law presumption is not the only means of determining whether a person is dead.

20. As noted, PIC 4017 requires:

    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.

21. Department policy provides that a decision maker has to be satisfied of one of the three criteria specified in PIC 4017. It provides that to satisfy paragraph (a) local laws are to allow the applicant to remove the child to Australia- in this regard the policy provides:

    The question of who has the right to determine where the child shall live varies from country to country. Generally, the person with sole custody of the child will have this right. However this may differ according to the jurisdiction. It will generally be decided by the local law of the country or state of which the child is a citizen or in which they usually reside, that is their home country as defined in regulation 1.03.

22. With respect to paragraph (b) policy[4] provides that the main question to be considered is whether the sponsor (the review applicant) has sole rights or responsibilities to decide where the child can live, and it goes on to note that:

    If there is no evidence of any person other than the sponsoring parent having custody/residence responsibility, officers should presume that the parent is the only person who needs to consent to the visa grant. However, they should note the following.

    The mere fact (or claim) that a non-custodial parent has had no contact with the child for a long time (or cannot be located) does not negate that person's rights with regard to the child and officers cannot assume that this person consents to the grant of a visa. In such cases, PICs 4015(b)/4017(b) cannot be met and applicants will need to satisfy PICs 4015(a)/4017(a) or PICs 4015(c)/4017(c), that is, the sponsor/family head will need to:

    ·obtain a court order permitting removal of the child

    ·provide other evidence that the laws of the child's home country permits removal of the child or

    ·provide an Australian child order.

    [4] Department PIC 4017 policy at 18.1–18.4.

23. In considering the requirements of PIC 4017 the Tribunal first identified relevant local laws which would have application. Regulation 1.03 defines home country in relation to a person as including the country of which the person is a citizen.  Information provided in support of the visa application to the Department shows that the visa applicant is a citizen of Eritrea. In this case the Tribunal is satisfied and finds that the relevant home country of the visa applicant is Eritrea.

24. The Civil Code of The State of Eritrea 2015[5] (the Code) provides that its primary objective is to enable persons to clearly understand their rights and duties from the moment of birth to death and provide binding rules to all their important activities.[6]

    [5] The Code replaces the Proclamation no.2/1991 which enacted the transitional Civil Code on 15 September 1991 see Eritrea - Civil Procedure Code of the State of Eritrea, 2015 (ilo.org)

    [6] Prelude to The Civil Code of The State of Eritrea 2015.

25. Book I, Title II, Chapter 2 of the Code provides:

    a)Article181(1) - as regards the proper care, a minor is placed under the authority of a guardian.

    b)Article 186 that the best interests of a minor (a person who has not attained the age of 18 years) shall be the primary consideration in all actions concerning minors.

    c)Art.189 – Default of One of the Parents

    (2) The mother shall exercise such function (guardianship) where no legal filiation link between minor child and father has been established.

26. Book II, Title I Chapter 10, Section 1 of the Code provides:

    Art.650.- Maternal Filiation

    The mother of a child is the woman who bore the child or the woman who adopted the child.

    Art.651.- Paternal Filiation

    The father of a child is the man:

    (a)married to the mother at the moment of the child’s birth

    (b)whose marriage with the mother was terminated by his death less than 307 days prior to the birth of the child

    (c)who acknowledged the child

    (d)whose paternity has been judicially established or

    (e)who adopted the child.

    Findings of Fact

27. In this case the Tribunal is satisfied and finds that the named biological father of the visa applicant [Mr A] has not had any contact with the review applicant since the sexual encounter that occurred in 2014. Further the Tribunal finds that the review applicant and [Mr A] were not married. The Tribunal also finds that the visa applicant has not turned18 years of age.

28. The Tribunal is also satisfied and finds that [Mr A] has not ever sought any custody orders or asserted any parental rights with respect to the visa applicant. He has not had his paternity judicially established and he has not acknowledged or adopted the child.

29. The tribunal is also satisfied and finds that the only two people who have been engaged in the day-to-day care and decision making in relation to the child have been the review applicant and her mother (the visa applicant’s maternal grandmother).

    Conclusions

30. The Tribunal concludes that pursuant to the laws of the applicant’s home country:

    a)   [Mr A] does not meet any of the definitions of father of a child pursuant to the Code.  

    b)   The review applicant meets the definition of mother of a child pursuant to the Code.

    c)   That in the absence of an established legal filiation link between a father and child the mother will exercise guardianship functions.

    d)   The best interests of the minor will be the primary consideration in all actions.

31. The tribunal is satisfied that as [Mr A] does not meet the definition of a father under the Civil Code of The State of Eritrea 2015 then the review applicant, as the mother of the visa applicant is the only person who can lawfully determine where the applicant is to live. The tribunal is satisfied that the review applicant has given her written consent (as has the child’s maternal grandmother). [7]

    [7] Signed Form 1229 on Department file.

32. The Tribunal for these reasons is satisfied that PIC 4017(b) is satisfied.

33. PIC 4018 requires that 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 review applicant’s representative submits that the child is at risk particularly if deported back to Eritrea. The submissions in particular reference the compulsory national service requirements of that country which has been identified to also target children. Post hearing further written submissions were received raising concerns about the deteriorating situation in Sudan where the visa applicant is currently located.

1. On the facts of this case the Tribunal is satisfied that the requirements of PIC 4018 are satisfied. The Tribunal in reaching this conclusion notes the age of the visa applicant, his current refugee status and living circumstances and his relationship with the review applicant.

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

   DECISION

3. 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 Martellotta
   Member