Akber (Migration)

[2017] AATA 114

Akber (Migration) [2017] AATA 114 (18 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Amtus Sami Akber

VISA APPLICANT:  Mr Taha Faizan Ahmed Akber

CASE NUMBER:  1516081

DIBP REFERENCE(S):  OSF2013/031198

MEMBER:Michelle Grau

DATE:18 January 2017

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.101.212, cl.101.222 and cl.101.226 of Schedule 2 to the Regulations

Statement made on 18 January 2017 at 9:12am

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – cl 101.226 – Public Interest Criterion 4017 – Permission for child to leave Pakistan – Guardianship judgement – Court order for removal for study purposes – Court order permitting child to live in Australia – Relinquished parental rights – Best interests of the child

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 101.212, cl 101.222, cl 101.226
Pakistan Guardians and Wards Act, s 26

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 Immigration on 1 October 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 6 May 2013. 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.101.225 and in particular PIC 4017.

3. This is the applicant’s second application for review before the tribunal. The delegate first refused the application on 24 July 2014 on the basis that she was not satisfied the visa applicant met the adoption criteria for the visa. On 28 April 2015, the tribunal, differently constituted, remitted the application finding the applicant met the adoption criteria, and specifically, cl.101.211 and cl. 101.221.

4. On 1 October 2015 another delegate refused the application on the basis of public interest criteria PIC 4017. The delegate refused to grant the visa on the basis that cl.101.226 was not met because the delegate was not satisfied the applicant met PIC 4017, which relates to permission to leave Pakistan. It is this decision which is now under review. The application was constituted to this tribunal on 31 August 2016.

5. The review applicant appeared before the tribunal on 7 November 2016 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

7. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets PIC 4017.

9. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria. Clause 101.226 requires the visa applicant to satisfy certain public interest criteria. One of them is the PIC 4017, which relevantly states:

   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.

10. The review applicant is the adoptive mother of the visa applicant.  The visa applicant was abandoned by his birth parents at age two years at the Bilquis Edhi Abandoned Child Adoption centre in Karachi and no identifying papers were provided with the child. He was known as Faizan. The visa applicant was cared for by the review applicant and her then husband (now deceased) since May 2004. On 16 April 2009 the applicant was officially appointed as the visa applicant’s guardian.

11. The review applicant came to Australia in July 2012 and was granted permanent residence in March 2013. The review applicant seeks to have the visa applicant live with her in Australia and applied for the child visa in 2013.

12. Based on the documents and evidence provided, the previous tribunal found the visa applicant had been customarily adopted by the review applicant and therefore the visa applicant met cl. 101.211 and cl.101.221.

13. At this review, the review applicant provided documents, which included a letter from the Edhi Foundation dated 30 November 2004; application to Pakistani Court of Guardians dated 30 July 2008; guardianship judgement dated 16 April 2009; application and order for correction of name of guardianship certificate dated 18 June 2013; amended guardianship certificate dated 18 June 2013; family registration certificate dated 27 August 2011.

14. In addition, the review applicant provided a court order of Judge Asad Ullah Khan Khattak dated 16 February 2016. The order states the applicant has sought permission to take the visa applicant to Australia for his higher education with better living standards. It records that the review applicant was already appointed guardian in 2009. The petition is allowed, subject to furnishing surety bonds of 50,000 rupees. It states, the applicant is permitted to take along the visa applicant, subject to prior furnishing certified copies of the child’s passport, visa/ immigration and address in Australia and the petitioner shall produce the child when required by the Court.

15. At hearing the review applicant also provided a copy of the application for that February 2016 order. The application stated the review applicant is residing in Australia with her real daughter and wants to ‘take away the visa applicant abroad/Australia to reside with her for study purposes.’ It states that ‘travelling abroad is for the welfare and better living and quality education and that the welfare of the minor lays in travelling abroad’.  An order was requested that the applicant be permitted ‘to take away the child abroad/Australia for study purpose and his future in the best interest of justice keeping in view the welfare of the minor’.

16. At hearing the tribunal discussed its concerns that the court order may not permit removal of the visa applicant as it specifically referred to moving to Australia for ‘study purposes’. The tribunal agreed to allow the review applicant a week to determine if they would or could seek another court order.

17. After hearing the review applicant informed she would seek another court order and the tribunal agreed to wait for that.

18. On 17 January 2017, the tribunal received submissions and a copy of two Pakistan court orders. The court order of 3 December 2016 referred to previous court orders and noted the child was given permission to live in Australia with his guardian (the review applicant). The second court order of 7 January 2017 corrected the spelling of the review applicant’s last name.

    FINDINGS AND REASONS

19. There is nothing before the tribunal to suggest that the grant of the visa to the applicant would be consistent with any Australian child order in force in relation to the applicant. Therefore the tribunal is not satisfied that the applicant meets PIC 4017(c).

20. The representative submitted the visa applicant met both paragraph (a) and (b) of PIC 4017. It was noted the delegate had concerns about the MRT’s previous remittal decision and found issue with it. However, it was submitted (and the tribunal agrees) it was not the role of the delegate or this tribunal to revisit the decision of a previous tribunal.

21. With respect to PIC 4017(b), it was argued that the biological parents’ abandonment of the child to the orphanage means they have relinquished their parental rights. The representative also submitted the biological parents should be presumed deceased under presumption of death rules. The tribunal does not accept the presumption of death applies as the biological parents in this case were people who were not in contact or ordinarily in contact. As there is no consent from the biological parents, the tribunal is not satisfied the visa applicant meets PIC 4017(b).

22. The tribunal accepts the review applicant is the visa applicant’s guardian and she has adopted the visa applicant in accordance with the Pakistani and Australian law. However, the Pakistan Guardians and Wards Act requires guardians to obtain the leave of the court if the child is to be removed from its jurisdiction. 

    Does the law of the applicant’s home country permit removal of the applicant (PIC 4017(a)?

23. At hearing the tribunal discussed whether Pakistan law permitted the removal of the visa applicant. The tribunal noted the February 2016 Pakistan court order, allows the visa applicant to travel abroad/ Australia for his higher education and better living standards, subject to the applicant furnishing a surety of 50,000 rupees, the child’s passport, immigration visa and address in Australia.

24. The tribunal accepts the review applicant’s evidence that the conditions have been (or will be in the case of the visa) complied with.

25. The tribunal accepts s26 of the Guardians and Wards Act requires that a guardian cannot, without leave of the court, remove the child from the limits of its jurisdiction except for such purposes as may be prescribed.[1]  The tribunal accepts the orders provided are pursuant to s26 of that Act.

    [1] >

    The tribunal was concerned that the February 2016 order specifically allowed the visa applicant to travel to Australia to pursue higher education and better living standards, but did not specifically refer to migration or living in Australia.  The representative submitted ‘permits removal’ means it is not prohibited and that it does not require that it is for a specific period or permanently. It was submitted a grant of a permanent visa would not be inconsistent with the court order or Australian law because the visa applicant will be pursuing his studies for two years and after that he will be an adult and no court order will be required. However, in the tribunal’s view the February 2016 order was permission to pursue education, which implied a temporary removal from Pakistan.

26. However, having now received the December 2016 court order which refers to living in Australia and in combination with the previous orders and application for the orders which contemplate study and moving to Australia, the tribunal is satisfied the law of Pakistan permits the removal of the visa applicant for migration purposes. The court orders clearly contemplate a move to Australia and to live in Australia with the review applicant (who is the visa applicant’s guardian). The tribunal also notes UK Home Office and DFAT traveller advice state a national ID card or valid Pakistani passport are needed to leave Pakistan and children accompanied by only one parent or guardian may be asked by immigration authorities to prove the children have consent to travel or proof of parental responsibility, especially if of Pakistani origin.[2] The tribunal accepts the court orders are proof of parental responsibility and consent to travel, leave Pakistan and to live in Australia. The tribunal is satisfied the court orders now provided by the applicant equate to permission to remove the child from Pakistan to move and to live in Australia with the review applicant (the guardian) permanently.

    [2] Government of the United Kingdom, Foreign Travel Advice: Pakistan, para. 7, Department of Foreign Affairs and Trade 2016, Pakistan, >

    The tribunal notes the delegate refused the application because she was not satisfied that Pakistani law would permit the removal of the child from Pakistan permanently. The delegate expressed doubts about the guardianship documents because of differences in religion (Ahmadi/Muslim) and concern over bilateral issues of situations where children are removed without parental consent or due to financial arrangements (although the delegate noted there was no evidence of this in this case).

27. While the tribunal initially had concerns about the court orders permitting permanent removal, additional court orders were provided to the tribunal in 2016 and 2017, which remedied this. Further, the tribunal has no concerns about the credibility of the documents provided or the adoption of the child. Another tribunal has already determined the child was adopted and meets the adoption requirements. Neither the delegate nor this tribunal need revisit that aspect.

28. Further, this tribunal sought verification of the documents from the overseas immigration post. The overseas post confirmed the Edhi centre adoption records and letter of 2004, but was unable to confirm other documents prior to hearing. Having considered the documents, heard from the review applicant and confirmed the cornerstone document, the tribunal has no doubt about the genuineness of the documents and the review applicant’s credibility.

29. Further, having heard from the review applicant, the tribunal has found her to be a very credible witness. The tribunal has no doubts in that regard. The tribunal has no doubts about the circumstances of the adoption, their relationship, or that relevant court orders have been obtained that permit removal of the child for migration purposes.

30. Having considered the country information and the court orders the tribunal is satisfied the law of the visa applicant’s country permits removal of the visa applicant.

31. The tribunal is satisfied the visa applicant meets PIC 4017(a) for the purposes of cl. 101.226.

32. Further, the tribunal 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 visa applicant child. The tribunal also accepts the review applicant’s evidence about the child’s circumstances. In fact, the tribunal considers it is in the best interests of the child that he be granted the visa, given he has been under the care of the review applicant since he was four years old.

33. The tribunal therefore finds the applicant meets PIC 4018 for the purposes of cl. 101.226. Accordingly the tribunal is satisfied cl.101.226 is met.

34. Further, the tribunal finds the applicant is sponsored by the review applicant who is an Australian permanent resident who has turned 18 years. Accordingly the applicant meets cl.101.212. The tribunal finds no sponsorship limits apply and the tribunal accepts the sponsorship referred to in cl. 101.212 has been approved and is still in force. As a result the applicant meets cl.101.222.

35. Clause 101.213 does not apply as the applicant is under 18 years.

36. The tribunal notes the applicant has already been found to meet cl. 101.211 and cl. 101.221 by a previous tribunal.

    DECISION

37. 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.101.212, cl.101.222 and cl.101.226 of Schedule 2 to the Regulations

    Michelle Grau
    Member