Al-Baw (Migration)

[2022] AATA 464

Al-Baw (Migration) [2022] AATA 464 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Salsabeel Ismail Mohammad Al-Baw

REPRESENTATIVE:  Mr Ali Mojtahedi

CASE NUMBER:  1903622

HOME AFFAIRS REFERENCE(S):          CLF2017/45518

MEMBER:Linda Holub

DATE:21 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·Public Interest Criterion 4017 for the purposes of cl 802.225 of Schedule 2 to the Regulations.

Statement made on 21 February 2022 at 2:57pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – home country’s law permits the removal of the applicant – unable to contact the visa applicant’s father – father’s permission letter with no restrictions – parenting order from a court – awaiting court’s final orders – decision under review remitted           

LEGISLATION

Family Law Act 1975, s 70L
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.213, 802.216, 802.225, 802.226; Schedule 4, Public Interest Criterion 4017; rr 1.03, 1.05A

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 7 February 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 June 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.225. Clause 802.225 requires that if the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 802.225 because the delegate was not satisfied the applicant meets any of the subclauses of Public Interest Criteria 4017.

5. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

6. The applicant was represented in relation to the review.

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 or not the applicant meets the provisions of PIC 4017.

9. Public Interest Criteria (PIC) 4017 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.

   BACKGROUND

10. The visa applicant was born in May 2015.

11. The Department’s Decision Record states that at time of application a document titled, The Hashemite Kingdom of Jordon Security Generals Directorate - Boarders Director of Queen Alia International Airport dated 22 October 2015 was provided to the Department addressing the parental responsibility (custody) requirement. On 24 March 2018 the Department wrote to the applicant and explained that the parental responsibility (custody) requirement must be met for every child under 18 years of age. If another parent or another person can legally determine where a child can live, permission for the child to migrate must be obtained from that person.

12. The letter explained to the applicant that both parents are requested to complete Form 1229. Alternatively, the parental responsibility (custody) requirement will be satisfied if:

    ·The sponsor has a valid court order that permits them to permanently remove the child from the child’s home country; or

    ·The sponsor has a valid Australian order issued by the Family Court of Australia and the grant of the visa would be consistent with that order.

13. On 23 April 2018 a response was received from the applicant’s representative advising that they are unable to contact the applicant’s father following incidents of domestic violence perpetrated by him against the applicant’s mother. The response referred to the translated document signed by the applicant’s father in which he gives his permission for the visa applicant to depart Jordan with their mother. It was submitted that PIC 4017 (a) is satisfied with the provision of that document.

14. The Department emailed the applicant’s representative on 23 April 2018 noting that the previous permission letter signed by the applicant’s father to depart Jordan with his mother is no longer valid as it was dated 22 October 2015 and it is only for their children to travel, not permanent migration and again reiterated the supporting evidence that should be submitted (as outlined in paragraph 16).

15. A number of further exchanges occurred between the applicant’s representative after which the delegate concluded that as no documents had been provided to satisfy PIC 4017, that therefore the requirements were not satisfied.

Evidence provided to the Tribunal

1. The Tribunal was provided with submissions and evidence in May 2021 including a written submission from the applicant’s migration representative outlining the background of the case.

2. It explains that the applicant was born in Jordan in May 2015. Both her parents were permanent residents, but the applicant’s mother returned to Jordan for the birth. The applicant’s father remained in Australia. To depart Jordan, the applicant required the written permission of her father. The submission stated that the permission letter of 22 October 2015 does not impose any other limitation or restriction. A copy of the letter was provided to the Tribunal. The applicant departed Jordan and arrived in Australia with her mother as the holder of a Visitor visa and subsequently applied for a Child visa on 26 June 2017.

3. In submissions to the Tribunal, it was submitted that the visa applicant satisfies both PIC 4017(a) and (c) on the basis that the law of her home country (Jordan) permits her removal and that the grant of the visa would be consistent with an Australian child order that is in force in relation to her. It refers to the requirements of PIC4017 requiring one of the following to be satisfied:

   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; or      

   c.   the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

4. It was submitted that firstly there is no requirement in the language of PIC 4017(a) that the removal be 'permanent'. The term 'removal' as it is used in PIC 4017(a) should be understood to mean "departure" and contemplates that the applicant may be absent temporarily or permanently. This interpretation is consistent with PIC 4017 being a criteria for the grant of both temporary and permanent visas (see for example clause 600.213 of Schedule 2 to the Regulations being a criteria for the grant of a subclass 600 Visitor visa). If the intention were otherwise, PIC4017(a) would have used different language such as “permanent removal” or “removal consistent with the visa being applied for”.

5. Secondly, it was submitted that the letter used for the visa applicant’s departure has no restrictions or limitations with respect to the purpose or length of departure. The only restriction in the letter is that the departure is to be to Australia. The submission states that the letter, gives rise to the ongoing permission for the visa applicant to depart Jordan for Australia and that it was on the basis of this letter that the visa applicant lawfully left Jordan for Australia.

6. The submission also states that PIC 4017 is also satisfied if the Minister is satisfied that the grant of the visa would be consistent with an Australian child order (PIC 4017(c)). It states that Regulation 1.03 provides that an 'Australian child order' has the meaning given by subsection 70L(l) of the Family Law Act 1975. In turn, subsection 70L(l) of the Family Law Act provides that an Australian child order means:

   (a) a Subdivision C parenting order; or

   (b) a State child order.

7. Section 4 of the Family Law Act 1975 defines a "Subdivision C parenting order", when used in Division 13 or Part VII, to mean "a parenting order to the extent to which it deals with:

   (a) whom a child is to live with; or

   (b) whom a child is to spend time with; or

   (c) who is to be responsible for child's day-to-day care, welfare and development."

8. The submission refers to the fact that the Federal Circuit Court of Australia made a parenting order on 21 August 2019, which, it was submitted satisfies the requirements of PIC 4017(c). The parenting order identifies that the visa applicant is to live with her mother and spend no time with her father. It was further submitted that the visa applicant’s mother is an Australian permanent resident living in Sydney and the sponsor of the visa applicant’s child visa application. The grant of the visa would allow the visa applicant to continue living with her mother in Sydney and is entirely consistent with the Australian child order.

9. In addition to the submission the Tribunal was also provided with copies of:

   ·the 22 October 2015 letter from the visa applicant’s father that granted her and her sibling permission to travel to Australia with their mother.

   ·a letter provided by a domestic violence counsellor from the NSW Western Sydney Local Health District dated 3 March 2021. It states that the visa applicant’s mother has been undertaking individual counselling since June 2019. It states that she has experienced significant domestic violence from her ex-partner, including physical abuse, sexual abuse, and psychological / emotional abuse.

   ·a Federal Circuit Court Order dated 21 August 2019. In it the court orders that the:

   § the matter be listed on 2 March 2020.

   § children live with the mother and that they spend no time with the father.

   § father is not to communicate with the children except as approved by the Independent Children’s Lawyer and that he be restrained from him approaching or coming within 200 metres of any place the visa applicant and her mother and sibling reside, attend school, work or medical institution.

   § parties and the visa applicant attend upon a Family Consultant nominated by the Manager, Child Dispute Services.

10. The Tribunal sought an update on the legal proceedings. In response the Tribunal received an email on 12 August 2021 from the applicant’s migration representative that following the mention on 2 March 2020 the parties engaged with the Family Consultant and there the matter is next listed for mention on 30 September 2021. Further, the Tribunal was advised that there has been no Final Order made to date and the parties do not know when the Court may make Final Orders in the proceedings. In response the Tribunal requested that the applicant keep the Tribunal informed of any developments.

11. On 25 January the Tribunal sought a further update and on 4 February 2022 was advised that there has been no Final Order made to date and the parties do not know when the Court may make Final Orders in the proceedings.

Findings

1. The Tribunal has considered the provisions of PIC 4017, in particular PIC 4017(c) and the information, evidence and submissions put forward on behalf of the applicant.

2. The Tribunal has regard to the fact that both of the visa applicant’s parents are permanent residents of Australia and that the Child (Residence) (Class BT) visa is a permanent visa. In addition, the Tribunal notes that the provisions of PIC4017(c) does not stipulate that the Australian child order should be a permanent order.

3. The Tribunal has had regard to the Federal Circuit Order which was handed down in August 2019. The Tribunal notes that the Court ordered that the visa applicant live with her mother and that her father not communicate with her and that he be restrained from coming within 200 meters of the applicant. The Tribunal notes that almost two years have passed since the previous Court orders were handed down and that there is no timeline for when Final Orders will be made by the Court. Taking all of this into account Tribunal is satisfied that the requirements of PIC4017(c) are met.

4. Accordingly, the applicant satisfies Public Interest Criterion 4017 for the purposes of cl 802.225 of Schedule 2 to the Regulations.

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

   DECISION

6. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

   ·Public Interest Criterion 4017 for the purposes of cl 802.225 of Schedule 2 to the Regulations.

   Linda Holub
   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.

   …

   step-child, in relation to a parent, means:

   (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

   (b)a person who is not the child of the parent but:

   (i)       who is the child of the parent’s former spouse or former de facto partner; and

   (ii)      who has not turned 18; and

   (iii)     in relation to whom the parent has:

   (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

   (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

   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.

   …