Edano (Migration)

[2023] AATA 3666

Edano (Migration) [2023] AATA 3666 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Susan Dabalos Edano

VISA APPLICANTS:  Miss Merylle Shayne Agapito

Miss Mariz Lourdes Agapito

CASE NUMBER:  2309014

IMMIGRATION REFERENCE:                  BCC2023/3198761

MEMBER:L Symons

DATE:25 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for Subclass 600 (Visitor) visas:

•Public Interest Criterion 4017 for the purposes of cl 600.213 of Schedule 2 to the Regulations

Statement made on 25 October 2023 at 3:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – visa applicants under 18 years – lawful removal and consent – visa applicants’ father passed away – delayed birth registration in Philippines law – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4 Public Interest Criterion 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 Immigration on 21 June 2023 to refuse to grant the visa applicants Visitor (Class FA) Subclass 600 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 7 June 2023. The delegate refused to grant the visas on the basis that the visa applicants did not satisfy the requirements of Public Interest Criterion (PIC) 4017. On 22 June 2023, the review applicant, who is the mother of the visa applicants, applied to the Tribunal for a review of that decision.

3. The review applicant appeared before the Tribunal on 6 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr John Patrick Warner, the review applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.

4. The review applicant was represented in relation to the review by Mr John Patrick Warner.

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

   RELEVANT LAW

6. Clause 600.213 of the Migration Regulations 1994 (Cth) (the Regulations) provides that:

   (1) The applicant satisfies Public Interest Criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

   (2) If the applicant has not turned 18, the applicant also satisfies Public Interest Criteria 4012, 4017 and 4018.

7. PIC 4017 provides that:

   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.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. The issue in the present case is whether the visa applicants satisfy the requirements of PIC 4017. The delegate made the decision on the basis that the visa applicants did not satisfy PIC 4017 as they had not turned 18 years and had not provided sufficient supporting evidence to establish that each person who can lawfully determine where the visa applicants are to live consents to the grant of the visas.  

9. The Department was provided with copies of the visa applicants’ Philippine Birth Certificates which indicate that they were born on 18 December 2007 and 11 February 2012 respectively.

10. In relation to the first named visa applicant, the Department was provided with copies of her Philippine Birth Certificate dated 14 July 2008, her Certificate of Baptism issued on 3 August 2008, a second Philippine Birth Certificate (with a slightly different spelling of her first name) dated 23 July 2008, her Philippine Identification Card issued on 22 September 2022, an affidavit for delayed registration of birth dated 3 July 2008, an affidavit of acknowledgement / admission of paternity dated 3 July 2008. a Form 1229 Consent to grant an Australian visa to a child under the age of 18 years, a letter of support dated 7 June 2023 from Mr John Warner and a letter dated 6 June 2023 from the Commonwealth Bank confirming a balance of $4,845.28 for an account in the name of John Patrick Warner and Susan Dabalos Edano,

11. In relation to the second named visa applicant, the Department was provided with copies of her Philippine Birth Certificate dated 25 January 2013, a letter dated 11 November 2022 from the Office of the Municipal Civil Registrar certifying her Birth Certificate, her Certificate of Baptism issued on 7 June 2023, her Philippine Identification Card issued on 16 October 2022, a Form 1229 Consent to grant an Australian visa to a child under the age of 18 years, a letter of support dated 7 June 2023 from Mr John Warner and a letter dated 6 June 2023 from the Commonwealth Bank letter confirming a balance of $4,845.28 for an account in the name of John Patrick Warner and Susan Dabalos Edano. 

12. The Department was also provided with a copy of the review applicant’s Queensland driver licence issued on 25 January 2023, a Death Certificate for Mr Mario Roxas Agapito dated 24 January 2020, the bio data page of John Evelyn Warner’s Australian passport issued on 6 November 2017 and valid until 6 November 2027, John Evelyn Winner’s Queensland heavy vehicle driver licence issued on 16 September 2019 and valid until 12 December 2024 and a statement by the review applicant dated 14 June 2023.

13. The review applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 21 June 2023, the second named visa applicant’s Philippines Birth Certificate dated 25 January 2013, a statement by the review applicant dated 6 June 2023 and an undated statement by the review applicant.

14. During the hearing, the review applicant gave evidence that she commenced a relationship with Mr Mario Roxas Agapito in 2016. Their relationship was on and off for several years with various periods of separation. They finally separated in December 2015. They had four children during the course of their relationship namely Merylle (15 years), Marfred (13 years), Mariz (11 years) and Arianne (9 years). She was the primary caregiver for the children except when she was working in Dubai between 2008 and 2009 when Mr Agapito cared for their eldest daughter. 

15. The review applicant gave evidence that after she separated from Mr Agapito in December 2015 the Department of Social Welfare facilitated discussions between them in relation to custody and access to the children. They entered into an agreement that the children reside with her and Mr Agapito have contact with them. This agreement was not formalised through the Courts. Mr Agapito then relocated to Manila and she remained in Cebu with the children. Despite the agreement, Mr Agapito thereafter did not visit the children. His parents have never had contact with the children. She worked and supported the children. Her mother looked after the children while she was at work.

16. The review applicant stated that she subsequently met her Australian partner, Mr Warner,  and commenced a de facto relationship with him. They have a child of their relationship. In 2018, she applied for a Partner visa (and was subsequently granted the visa on 4 January 2023). She left her four children in the care of her parents when she came to Australia. This was an informal arrangement.

17. The review applicant stated that she was subsequently contacted by Mr Agapito’s father and informed that he passed away (on 21 January 2020). He asked her if she would attend his funeral. She informed him that she could not but would send him some money which she did. There was no discussion about her children.  

18. The Tribunal discussed with the review applicant the birth of the first named visa applicant (born on 18 December 2007) and the documentary evidence provided in relation to her birth. The Tribunal noted that her Certificate of Live Birth indicates that her birth was notified to the Municipal Civil Registrar on 3 July 2008 and registered on 14 July 2008. The Tribunal noted that this was almost 7 months after her birth and, under Philippines law, her birth had to be registered within 30 days of her birth. When asked why her birth was not registered in accordance with Philippines’ law, she responded that she went into labour during a cyclone. They lived in an isolated area far from the town. It was her first child and she gave birth at home. They had paid for a midwife to be in attendance at their home.

19. The review applicant stated that after the birth of the first named visa applicant Mr Agapito was busy looking after her. They lived two hours away from the town. They did not have the money or the time to go to the Municipal Civil Registry to register the birth of the first named visa applicant. When they eventually registered the birth they had to explain the reason for the delay and provide documents. Mr Agapito also spoke to them. The mid wife accompanied them as well. They accepted the late registration because the mid wife was there.

20. The Tribunal discussed with the review applicant the birth of the second named visa applicant (born on 11 February 2012) and the documentary evidence provided in relation to her birth. The Tribunal noted that her Certificate of Live Birth indicates that her birth was notified to the Municipal Civil Registrar on 23 November 2012 and registered on 25 January 2013. When asked why her birth was not registered in accordance with Philippines’ law, she responded that she gave birth at home with the assistance of a midwife. A day later the second named applicant became very ill and had to be hospitalised. She was diagnosed with an infection of the blood. She remained in hospital for 3 months. After they returned home she forgot to register her birth. When her mother reminded her, they went to the Municipal Civil Registry with the midwife to register her birth. A Birth Certificate was then issued. It has the signature of the midwife on it.

21. The review applicant stated that she applied for Visitor visas for her four older children to visit her in Australia and spend time with their half-brother. Her son (Marfred Wayne Agapito dob 28.4.2010) was granted a Visitor visa on 13 June 2023 which is valid until 13 June 2024 and her three daughters were initially refused Visitor visas on 21 June 2023. On 22 June 2023, she received a letter informing her that her youngest daughter (Arianne Kesia Agapito dob 25.4.2014) had been granted a Visitor visa which is valid until 21 June 2024. The only difference in the visa applications for the four children were that there was a delay in registering the births of two of the children who were subsequently refused the Visitor visas.

22. The review applicant stated that she would like all four of her older children to visit Australia and spend time with their half- brother. She felt very sad when two of her children were granted Visitor visas and two were refused Visitor visas. She cannot bring two to Australia and leave two behind in the Philippines. If the first and second named visa applicants are granted Visitor visas she will travel to the Philippines and accompany all four of her older children to Australia.

23. The review applicant’s partner, Mr John Warner, gave evidence that he has visited the review applicant’s children a few times and financially supports them. They have always been with their maternal grandparents. Their maternal grandfather passed away in 2022. He and the review applicant decided not to tell them that two of them had been granted Visitor visas and two had not. They have all undertaken biometric tests and health tests.

24. Having considered all the evidence, the Tribunal accepts that the review applicant is the mother of the first and second named visa applicants and Mr Mario Roxas Agapito is their father and finds accordingly. The Tribunal finds that Mr Agapito passed away in the Philippines on 21 January 2020. The Tribunal is satisfied that there are no Court orders in relation to the custody of or access to the first and second named visa applicants made in the Philippines and finds accordingly. The Tribunal accepts that the review applicant left her four older children in the care of her parents when she moved to Australia and that this was an informal agreement. The Tribunal accepts that their maternal grandmother has continued to care for the four children after the death of their maternal grandfather in 2022. The Tribunal accepts that their paternal grandparents have not had any contact with them.

25. In view of the above, the Tribunal finds that the only person who can lawfully determine where the first and second named visa applicants live is the review applicant. Based on the written and oral evidence before it, the Tribunal finds that the review applicant consents to the grant of Visitor visas to the first and second named visa applicants. Accordingly, the Tribunal finds that the requirements of PIC 4017(b) are satisfied and therefore the requirements of PIC  4017 as a whole are met.

    DECISION

26. The Tribunal remits the application for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for Subclass 600 (Visitor) visas:

    ·Public Interest Criterion 4017 for the purposes of cl 600.213 of Schedule 2 to the Regulations

    L Symons
    Member