Kaiapo Nascimento (Migration)

[2020] AATA 55

Kaiapo Nascimento (Migration) [2020] AATA 55 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diogo Kaiapo Nascimento

CASE NUMBER:  1836188

HOME AFFAIRS REFERENCE(S):          CLF2017/17286

MEMBER:Linda Holub

DATE:9 January 2020

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:

·PIC 4017 for the purpose of cl.802.225.

Statement made on 09 January 2020 at 3:52pm

CATCHWORDS

MIGRATION – cancellation – Child (Residence) (Class BT) – Subclass 802 (Child) – parental consent of father – court order – mother has full custody of child – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 802.225, Public Interest Criterion (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 Immigration and Citizenship to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration and Citizenship for a Child (Residence) (Class BT) visa on 21 February 2017.  The delegate decided to refuse to grant the visa on 26 November 2018 and notified the applicant of the decision and his review rights.

3. The delegate refused the visa application on the basis that the applicant did not satisfy cl.802.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met the Public Interest Criterion (PIC) 4017.

4. The applicant applied to the Tribunal on 10 December 2018 for review of the delegate's decision.

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

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

   RELEVANT LAW

7. At the time the visa application was lodged, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative): Item 1108A of Schedule 1 to the Regulations. The only subclass in respect of which any claims have been advanced is Subclass 802 (Child).

8. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria to be met in this case includes cl.802.225. Clause 802.225 requires the visa applicant satisfy certain public interest criteria - PIC 4017, which relevantly states:

   The Minister is satisfied of one 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.

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

   CLAIMS AND EVIDENCE

10. The applicant is a national of Brazil, born in December 2007.  He first travelled to Australia on a Visitor (FA-600) visa arriving here on 1 January 2017.  He was sponsored in his visa application by his mother.  When lodging his application, the applicant included a Form 1229 – Consent to grant an Australian visa to a child under the age of 18 years completed and signed by his father, as shown in the applicant’s birth certificate.  The Department referred the form to its overseas office in Brasilia for verification.  Despite several attempts, the office was unable to make contact with the applicant’s father and subsequently sought further evidence from the applicant’s mother.

11. On 26 July 2018 a court order was provided to the Department in an attempt to satisfy PIC 4017.  This was sent by the Department to its office in Brasilia for verification.  In response, the office advised that while the court document states that the applicant’s mother has permanent custody of the child, it does not determine that the father has lost parental rights of the child. 

12. On 23 August 2018 the Department requested further evidence to satisfy PIC 4017.  At the time of the delegate’s decision on 26 November 2018, the required evidence had not been provided.

13. The applicant provided a number of documents to the Tribunal in support of the application and on 24 June 2019, the Tribunal invited the applicant to a hearing on 15 October 2019.  On 26 July 2019, the Tribunal received a request for the hearing to be postponed to enable further evidence to be made obtained.  The Tribunal agreed to the request and a new hearing date of 15 October 2019 was set.  On 5 September 2019 due to circumstances beyond the control of the Tribunal, the hearing was rescheduled to 10 October 2019.

14. On 6 September 2019 the Tribunal was provided with an email via the Department from the applicant’s father.  His email raised concerns about attempts to keep the applicant in Australia permanently.  At around the same time, the Tribunal sought the assistance of the Department to establish the identity of the applicant’s father in relation to documents that had been provided.

15. On 23 September 2019 the Tribunal was advised that the applicant’s mother would be unable to attend the Tribunal hearing as she was flying to Brazil to attend a court hearing regarding the custody of the applicant and his visa application and sought a further postponement of the hearing.  She provided evidence of her flights.  This request was granted the hearing postponed until 4 November 2019.

16. On 16 October 2019 the applicant’s mother provided an original and certified translated copy of the court order from Brazil.  The Tribunal advised her that it required independent verification of the authenticity of the court document and that if such verification was received a hearing may not be required. 

17. The Tribunal sought the assistance of the Department’s office in Brasilia to verify the Court Order which had been provided to the Tribunal.  On 25 November 2019, the Department advised the Tribunal that the court order is genuine and the applicant’s mother now has full custody of the applicant and he is allowed to reside in Australia permanently.

18. The court order states:

    “the parties reached the following AGREEMENT: 1 – The minor Diogo Kaipo Nascimento, will remain under the unilateral custody of the mother, with the father authorising his son Diogo Kaipo Nascimento, to reside permanently with the mother, Diana Carvalho Kaipo, in Australia and agreeing that the mother undertakes all measures to sign all documents needed for obtaining a permanent residency visa in Australia, according to the rules of that country ”[1].

    [1] AAT file, folio 137. 

    Findings and reasons

19. The issue in this matter is whether the Tribunal is satisfied that the applicant meets PIC 4017.

20. The Tribunal has considered whether the law of Brazil permits the removal of the applicant. As noted above the order of the Probate and Family Court of the Judicial District of Palmas, State of Tocantins grants the applicant’s mother full custody of the applicant, allows him to reside in Australia permanently and allows her to undertake all measures needed for him to obtain permanent residency visa in Australia.

21. The Tribunal finds, on the basis of this document which has been verified as a genuine document, that the law of the applicant's home country permits the removal of the applicant. The Tribunal is satisfied that the applicant meets PIC4017 (a) and PIC 4017, for the purpose of cl. 802.225.

22. For the reasons given above the Tribunal finds the applicant satisfies the requirements of PIC 4017 for the purpose of cl.802.225.

    DECISION

23. 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:

    ·PIC 4017 for the purpose of cl.802.225

    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.

    …