Jiang (Migration)

[2019] AATA 3685

Jiang (Migration) [2019] AATA 3685 (18 June 2019)

WRITTEN STATEMENT OF DECISION

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Huafang Jiang

CASE NUMBER:  1710239

DIBP REFERENCE(S):  OSF2015/048614

MEMBER:Nicholas McGowan

PLACE OF DECISION:  Melbourne

DATE:18 June 2019

DECISION:

The subclass 101 visa applicant meets public interest criteria 4017 for the purposes of clause 101.226.

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – parental consent – biological father deceased – mother granted sole parental responsibility – decision under review remitted

LEGISLATION

Migration Regulations 1994 (Cth), cl 101.226, Public Interest Criterion (PIC) 4017

REASONS:

1. On 20 November 2015 the review applicant (a mother) applied for her child (visa applicant) to migrate to Australia. On 27 March 2017 the Minister’s delegate refused the application because the child did not have her biological father’s consent to migrate.

2. The mother is a Chinese born permanent resident of Australia. The mother is married, though her husband is not her child’s father. The child’s father is an ex-boyfriend who lived in Singapore, where the child’s mother had lived previously. The child, however, was born in China, where she and her mother returned, while the child’s father remained in Singapore. Some few months after the child’s birth the relationship between the mother and boyfriend ended. Later attempts by the mother to contact her ex-boyfriend and obtain his consent for their child to migrate to Australia proved unsuccessful. The boyfriend had no involvement with his child since birth according to the child’s mother. As it transpires, and unbeknownst to the mother, her ex-boyfriend had died on 23 January 2014. This explained why the mother had been unable to contact him, and why he did not appear before a Court in China as summonsed. Subsequently, the child’s mother has also taken legal action in Australia with respect to her child. Relevant documents will be shared with the Minister including a Family Court order (made in Western Australia) granting the mother sole parental responsibility.

3. Given all the above, and accepting the documentary evidence as presented, this tribunal is satisfied that the relevant legal requirement in clause 101.226 (PIC 4017) have been met. That is to say, a ruling by the People’s Republic of China District Court establishes the child’s right to live with her mother exclusively; each person who can lawfully determine where the child is to live has consented (as her biological father is deceased); and the grant of the visa would be consistent with the sole Australia order made in relation to the child as per the Family Court order of Western Australia (File No. (P)PTW4256/2017).

   Statement made on 18 June 2019 at 2:32pm