Brazil (Migration)

[2023] AATA 4472

Brazil (Migration) [2023] AATA 4472 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Frankie Desmond Brazil

REPRESENTATIVE:  Mr Dhaval Rajendra Mandan (MARN: 5513569)

CASE NUMBER:  2302733

HOME AFFAIRS REFERENCE(S):          BCC2022/5089636

MEMBER:David Crawshay

DATE:30 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 30 October 2023 at 2:53pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – child under the age of 18 years – consent to grant of visa – parents with parental responsibility – biological father – ‘persistent absence and disregard for parental obligations’ – intention to adopt the applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, PIC 4017

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 20 February 2023 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 29 November 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy public interest criterion (“PIC”) 4017 for the purposes of cl.600.213(2). A copy of the delegate’s decision was provided to the Tribunal by the applicant.

3. The applicant appeared before the Tribunal on 6 October 2023 along with his brother, Master Charlie-jon Brazil, in a combined hearing. Charlie is the subject of another review application (Tribunal matter number 2302729) for which a separate decision has been made. The Tribunal also received oral evidence from the applicant’s mother, Ms Charlotte Sarah Brazil, and from Mr David Brazil, who identified himself as the applicant’s stepfather. The applicant was represented in relation to the review.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies PIC 4017, which is required by cl.600.213(2) where the applicant has not turned 18 at the time of decision. As at the time of this decision, the applicant has not yet turned 18.

6. PIC 4017 provides as follows:

   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.

7. There is no evidence before the Tribunal, and no submissions have been advanced, that the law of the visa applicant’s home country permits the removal of the applicant. The Tribunal is not satisfied that the visa applicant meets Item 4017(a).

8. There is no evidence before the Tribunal that the grant of the visa would be consistent with any Australian child order in force in relation to the applicant. The Tribunal is not satisfied that the applicant meets Item 4017(c).

9. The visa applicant therefore seeks to satisfy Item 4017(b), which requires the consent of each person who can lawfully determine where the applicant is to live to the grant of the visa.

10. The applicant had previously submitted a Form 1229 “Consent to grant an Australian visa to a child under the age of 18 years” dated 29 November 2022. Within this form, the parents with parental responsibility were listed as David Brazil and Charlotte Sarah Brazil. Mr Brazil was listed as the applicant’s father and Mrs Brazil as the applicant’s mother.

11. The Tribunal has considered a birth certificate in respect of “Frankie Desmond Roberts” dated 17 October 2017. The certificate lists his mother as “Charlotte Sarah Cairns” and his father as “Frank Apsey Roberts”. A Change of Name Deed dated 14 June 2017 was completed by Mrs Charlotte Sarah Brazil. Within this deed, Mrs Brazil purported to renounce, relinquish and abandon the use of her child’s former name, “Frankie Desmond Roberts”, and in place of it substitute the name of “Frankie Desmond Brazil” on his behalf.

12. As a result of these documents, the Tribunal accepts that Mrs Brazil is the applicant’s biological mother and that Mr Roberts is the applicant’s biological father.

13. Prior to the delegate’s decision, no consent had been given by the applicant’s biological father to the removal of the applicant nor had any document been submitted showing that Mrs Brazil had been given full custody of the applicant. As a result, the delegate found that PIC 4017 was not met.

14. On 21 July 2023, the Tribunal wrote to the applicant pursuant to s.359(2), inviting him to provide information to demonstrate that he satisfied PIC 4017 or should otherwise be granted the visa. After an extension of time was requested and agreed to, the applicant’s representative wrote to the Tribunal on 8 August 2023 by email with attachments. This email and its attachments indicated that Mr Brazil (that is to say, Mr David Brazil) was seeking to formally adopt the applicant. The attachments included an email from Mrs Brazil dated 8 August 2023, which forwarded on an earlier email of 7 August 2023 from Grace Hinkley, Initial Enquiries Advisor for Adoption Partnership South East. Within this email, Ms Hinkley relevantly stated as follows:

    The basic criteria for a step parent adoption are that the prospective adoptive parent must be over 21 years of age and the birth parent over 18 years of age. A step parent must have lived with the child as part of a family for 6 months or more. The applicant (step-parent) must also have been permanently resident in the UK for at least 12 months immediately prior to the adoption application. All applications must be made to the court prior to a child’s 18th birthday.

15. Based on this information, the Tribunal formed the preliminary view that despite Mr Brazil’s apparent intention to adopt the applicant, it appeared he was unable to do so within the foreseeable future as Mr Brazil was currently in Australia and not in the United Kingdom, meaning that he would not be permanently resident in the UK for at least 12 months immediately prior to any adoption application having been made. As this was a new issue in the review, it was conveyed to the applicant – in this instance by being included in the hearing invitation of 17 August 2023.

16. In an email of 1 September 2023, the applicant’s representative stated that a letter had been sent to the applicant’s biological father for his signature. A draft of this letter was attached to the email. The letter relevantly stated that the applicant’s biological father had “no objections to Frankie Desmond Brazil and Charlie Jon Brazil time in Australia under the full parental rights of David and Charlotte Brazil”. As at the date of this decision, however, no signed copy of this letter had been returned.

17. A further email of 5 October 2023 contained a statement from Mr and Mrs Brazil of the same date. Within this statement, Mr and Mrs Brazil sought to give reasons why their “exceptional” circumstances should be considered. The authors emphasised the commitment that they had to the wellbeing of the applicant and his brother as against Mr Roberts’ “persistent absence and disregard for his parental obligations”. The authors detailed the efforts they had made to reach out to Mr Roberts’ family, without success. The authors stated that they had initiated the adoption procedure in the United Kingdom, which was currently in a “waiting phase”. The authors ultimately requested understanding and compassion as they attempted to complete their Australian holiday – something that they say holds great significance for the family.

18. At hearing, the Tribunal discussed their situation with Mr and Mrs Brazil. It heard from Mr Brazil that the family was planning on having a holiday around Australia, but these plans were put on hold pending the refusal of the applicant’s visa and that of his brother. Mrs Brazil told it that the trip had been a dream of theirs for eight years. She also reiterated the negligible role that Mr Roberts had in the lives of the applicant and his brother.

19. While the Tribunal acknowledges the information provided by Mr and Mrs Brazil before and at hearing, this information provides no basis for a finding that Item 4017(b) is met. Specifically, although Mr and Mrs Brazil requested the Tribunal to consider exceptional circumstances, it is unable to overlook the clear words of the criterion.

20. Based on the above information, the Tribunal finds that the applicant’s purported stepfather, Mr David Brazil, is unable to adopt the applicant while he remains in Australia. In the absence of an adoption having taken place between the applicant and Mr Brazil, the applicant’s biological father remains as a person who, along with the applicant’s mother, can lawfully determine where the applicant is to live. As this person has not consented to the grant of the applicant’s visa via a Form 1229 or otherwise, the Tribunal finds that he has not consented to the grant of the visa.

21. Based on the findings made, the Tribunal is not satisfied that the applicant meets Item 4017(b).

22. As the applicant is unable to meet any of the alternative requirements under PIC 4017, he does not meet that criterion in its entirety.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

    David Crawshay
    Member