Khan (Migration)

[2024] AATA 1091

Khan (Migration) [2024] AATA 1091 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Imran Azam Khan

VISA APPLICANT:  Miss Kamille Dua Khan

REPRESENTATIVE:  Ms Cathrine Burnett-Wake (MARN: 0324641)

CASE NUMBER:  2316371

HOME AFFAIRS REFERENCE(S):          CLF201923571
M17/1330

MEMBER:David Crawshay

DATE OF ORAL DECISION:  27 March 2024

DATE OF WRITTEN STATEMENT:         9 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 101 (Child) visa:

·cl.101.226 of Schedule 2 to the Regulations.

Statement made on 09 April 2024 at 4:43pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – consent to the grant of visa – conception through a surrogacy arrangement – anonymous egg donor – legal rights of the surrogate mother – best interest of the applicant – applicant’s close relationship with her caretakers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.226; Schedule 4, PIC 4017 and 4018

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 19 August 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 8 August 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.226.

3. The delegate refused to grant the visa on the basis that cl.101.226 was not met. Specifically, the delegate was not satisfied that public interest criterion (PIC) 4017 and PIC 4018 were met.

4. The review applicant appeared before the Tribunal on 27 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from Ms Dawn Beach, the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The review applicant was represented in relation to the review by his representative. The Tribunal wishes to put on record its appreciation for the submissions provided by the review applicant’s representative which were detailed and relevant. It has drawn on these submissions in coming to its decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant satisfies PIC 4017 and PIC 4018, both of which are required by cl.101.226 where a visa applicant has not turned 18 at the time of decision. As at the time of this decision, the visa applicant has not yet turned 18. Therefore, she must meet PIC 4017 and PIC 4018.

   Public Interest Criterion 4017

8. Public interest criterion 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.

9. There is no evidence before the Tribunal that the law of the visa applicant’s home country permits her removal. The Tribunal is not satisfied that the visa applicant meets Item 4017(a).

10. 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 visa applicant. The Tribunal is not satisfied that the visa applicant meets Item 4017(c).

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

12. The claimed facts of this matter are somewhat unique. The review applicant claims that the visa applicant was conceived in 2011 through a surrogacy arrangement whereby his sperm was used alongside the egg of another person. The results of a DNA test dated 28 October 2019 reveal that the review applicant is not excluded from identification as the father of the visa applicant, and that his relative chance of paternity is 99.97 per cent.

13. Based on this information, the Tribunal accepts that the review applicant is the visa applicant’s biological father. It accepts that he is someone who can lawfully determine where the visa applicant is to live. It accepts that, by sponsoring the visa applicant, he has consented to the grant of the visa.

14. The issue now considers whether there is any other person who can lawfully determine where the visa applicant is to live and, if so, whether that person consents to the grant of the visa. This requires the Tribunal to assess the claims of surrogacy to see if there is another person who can exercise the rights under Item 4017(b).

15. In her decision to refuse the present visa, the delegate found that there was not sufficient evidence for the review applicant or Ms Beach to remove the visa applicant from India. Specifically, the delegate found that there was no court order between the commissioning parents (the review applicant and Ms Beach) and the visa applicant.

16. With respect, the Tribunal does not consider that this is an issue. Rather, the issue for it is whether the arrangements for the conception and birth of the visa applicant (which the review applicant claims is a surrogacy arrangement) mean that another person can exercise the rights under Item 4017(b). This necessitates a review of the documents that support the claim of surrogacy.

17. The first of these documents is the surrogacy agreement which is dated 5 April 2011. The intended parents were listed as “Dawn Beach” and “Imran Beach” and the surrogate mother was listed as “Kunti Devi Sharma”. The confirming party was listed as “Vikarm M. Sharma”, who is elsewhere listed as the surrogate mother’s husband. The agreement stated as follows at clause 4.2:

    Upon giving birth to the Child, the surrogate motherhood of the Surrogate Mother shall stand perpetually extinguished and the relationship between the Surrogate Mother and the Child shall stand perpetually severed, disassociated and come to an end.

18. Elsewhere at clause 3.1.15, the surrogacy agreement purported to preclude any claim over the visa applicant by the surrogate mother. At clause 4.6, the agreement stated that the surrogate mother had no physical or legal custody of or any parental rights or duties with respect to the visa applicant. The agreement also asserted other rights as belonging to the intended parents.

19. No reference was made in the agreement to the person whose eggs would be used in the conception and whether these eggs would belong to the surrogate mother or to another. At article I of the Recitals, it was claimed that Ms Beach as the intended mother “is unable to conceive”, although elsewhere in a document titled “DECLARATION OF INTENT” and dated 23 September 2011, it was stated that the child would be conceived via in vitro fertilisation through the union of the eggs of Ms Beach and the review applicant.

20. Finally, a letter from Corion Fertility Clinic dated 5 April 2011 detailed the process leading up to the transfer of embryos to the surrogate mother. The letter stated that 12 oocytes (immature ova) were retrieved from an anonymous egg donor and then subjected to IVF. After the IVF process, 10 embryos were created, four of which were then planted into Ms Sharma via ultrasound guided embryo transfer, with the remaining six being cryopreserved. The letter was signed on behalf of the laboratory director, Mrs Sakshi Parab.

21. Through open sources, the Tribunal has confirmed the existence of Corion Fertility Clinic and accepts that Mrs Parab was laboratory director there when the transfer of embryos took place in April 2011. It accepts that the letter is genuine and that it accurately details the events that took place. Additionally, and given that the visa applicant’s birth date of 14 December 2011 is within 38 weeks of the transfer of embryos, the Tribunal accepts that the events detailed in the letter led to the birth of the visa applicant.

22. Given that the Tribunal accepts the genuineness of the letter and the accuracy of its content, it accords substantial weight to information contained in it stating that the egg donor was anonymous. Moreover, it accords substantially more weight to this information than it does to information from other documents and sources; namely:

    ·the contents of the “Declaration of Intent” which lists Ms Beach as being the source of the eggs. A letter had been provided by her medical practitioner stating that she is post-menopausal. Based on this information, the claim that she provided the eggs is given no weight;

    ·the oral testimony of Mr Amrik Singh during a Department interview, who stated that Ms Sharma provided the eggs. The Tribunal agrees with the submissions given by the review applicant’s representative in her letter of 20 March 2024 that these “off-the-cuff” comments were “circumstantial and constitute[d] hearsay”. Accordingly, they are given minimal weight; and

    ·the testimony of the review applicant at hearing, who told it that the visa applicant was conceived using the eggs of the person who carried her during pregnancy (i.e. Ms Sharma). The Tribunal finds that he is likely not sophisticated in his knowledge of the processes involved in surrogacy including who provided the biological material for the conception. His testimony is given little weight.

23. The Tribunal accepts that the person who provided the biological material alongside the review applicant that led to the visa applicant’s conception is unknown.

24. In relation to whether Ms Sharma has any parental rights as the visa applicant’s surrogate mother, including the right to lawfully determine where the visa applicant is to live, the review applicant’s representative relevantly stated as follows in the aforementioned submissions letter:

    On the issue of the surrogate mother and any parental rights she may be alleged to have, it is important to note that any such rights over the surrogate child were extinguished following the birth of the applicant. This is made clear in numerous Articles of the surrogacy agreement, particularly Articles 3.1.15 and 4.6 (see also Article 4 at large). This therefore eliminates any possibility of the surrogate mother having any legal standing over Kamille generally, including in giving consent for where she should live.

    [paragraph numbers, footnotes omitted]

25. The Tribunal has assessed the surrogacy agreement and accepts that it does not reserve any parental rights to Ms Sharma as the visa applicant’s surrogate mother and that any such rights have been extinguished.

26. As a result of the above findings, the Tribunal finds that the review applicant is the only person who can lawfully determine where the visa applicant is to live. Because he has provided his consent to the grant of the visa, Item 4017(b) is met. As this is an alternative requirement under PIC 4017, that criterion is met in its entirety.

    Public Interest Criterion 4018

27. Public interest criterion 4018 provides as follows:

    The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

28. In coming to her decision, the delegate found that the visa applicant was significantly closer to her “caretakers”, Mr Ashwani and Ms Manju, than she was to the review applicant and Ms Beach. This finding was based on further findings that the review applicant and Ms Beach had not been playing an active and meaningful role in the visa applicant’s day-to-day life, and the review applicant had not made any efforts to meet the visa applicant even once after her birth. It was also based on the responses given by him to questions asked by the Department, including that the visa applicant had been living with her caretakers since she was 22 days old, and that he had limited knowledge of the visa applicant’s circumstances in India.

29. In the aforementioned submissions letter, the review applicant’s representative dealt with these findings one-by-one. In relation to the finding that there was a lack of effort on the part of the review applicant and Ms Beach, his representative submitted that the review applicant was unable to travel to India for the first six years of the visa applicant’s life due to issues to do with his travel documents. Specifically, he had problems obtaining a visitor visa to India because he needed his Pakistani passport to travel to Pakistan to look after his father in 2011 and the visitor visa application was withdrawn as a result. At hearing, he told the Tribunal that he also visited Pakistan in 2014. Other issues were said to contribute to the review applicant not being able to travel to see the visa applicant, including the “cancellation” of his visa.[1]

    [1] This was actually a refusal

30. In terms of the limited knowledge of the visa applicant’s circumstances in India, the review applicant’s representative submitted that he is aware of her circumstances including her caretakers, schooling and friends. At hearing, the Tribunal asked him about the visa applicant’s details and he answered in substantially similar terms to what has been included in the submissions letter.

31. In relation to the finding by the delegate that the visa applicant is closer to her caretakers than to the review applicant and Ms Beach, the review applicant’s representative submitted that while the visa applicant has a close relationship with her caretakers, she knows that the review applicant and Ms Beach are her parents and that the caretaking arrangement is temporary. The representative pointed out that the caretaker arrangement was a commercial and not an altruistic arrangement. The representative also wrote about the visa applicant having greater access to healthcare in Australia as well as greater safety. The representative pointed out that the review applicant and Ms Beach had been having a meaningful role in the visa applicant’s day-to-day life through their financial support and regular contact. Finally, the representative submitted that the visa applicant’s views should be taken into consideration when deciding her best interests.

32. At hearing, the Tribunal sought the visa applicant’s views on moving to Australia to live with the review applicant and Ms Beach. She told it that she wants to come to Australia. When asked why she did not want to stay in India with the people who looked after her for the last 12 years, she said that she feels like living with her parents. She said that she did not want to live in India. She said that she missed her parents.

33. When questioned by the Tribunal, the review applicant and Ms Beach told it that the visa applicant would live with them at their address and be enrolled in a local school. The review applicant told it that several people from her village, including children, had come out to Australia to live near them.

34. The Tribunal has considered the information in front of it. Firstly, it is mindful that the words of PIC 4018 are cast in the negative, and only require it to be satisfied of the absence of any compelling reason to believe that the grant of the visa would not be in the visa applicant’s best interests. In the words of the review applicant’s representative in her submissions letter:

    On an ordinary reading of this passage and as has been applied in case law, it is not necessary that the best interests of the applicant must be proved, nor to a ‘compelling’ standard, but rather any proposed compelling reason to suggest that the visa application would not be in the applicant’s best interests as presented by the Department must be refuted.

    [emphasis in original]

35. Having considered the information in front of it, the Tribunal accepts that the visa applicant’s caretakers have been looking after her for the last 12 years and that their relationship is close. While it finds that the relationship between the visa applicant and her caretakers is not an altogether altruistic arrangement, it does not dismiss it as a purely commercial arrangement. However, the Tribunal also accepts based on documentary evidence that the review applicant has been providing financial support to the visa applicant during this time and has been communicating with her. It has also had regard to the visa applicant’s testimony at hearing that she wants to come to Australia and gives weight to these comments. It accepts that preparations have been made for the visa applicant’s arrival into Australia, including her schooling. Although it is unfortunate that the review applicant has yet to see the visa applicant, it does not consider this to be a compelling reason to believe that the grant of the visa to the visa applicant would not be in her best interests in light of other factors that count in favour of the visa being granted.

36. Based on the above findings, the Tribunal ultimately finds that there are no compelling reasons to believe that the grant of the visa would not be in the best interests of the visa applicant. Public Interest Criterion 4018 is met.

37. As both PIC 4017 and PIC 4018 are met, cl.101.226 is met.

    DECISION

38. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 101 (Child) visa:

    · cl.101.226 of Schedule 2 to the Regulations.

    David Crawshay
    Member