2214671 (Migration)

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.