Kiangali (Migration) - [2022] AATA 5194

Kiangali (Migration) [2022] AATA 5194 (5 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bradly Benson Kiangali
REPRESENTATIVE:  Mrs Josephine Sataro-Webb (MARN: 2015394)
CASE NUMBER:  2119679
HOME AFFAIRS REFERENCE(S):          CLF2019/24874
MEMBER:Meena Sripathy
DATE: 5 August 2022
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:
·cl 802.212 of Schedule 2 to the Regulations; and
·cl 802.221 of Schedule 2 to the Regulations.

Statement made on 05 August 2022 at 11:31am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of the sponsor – child-parent relationship – DNA test results – not limited to biological parents – financial, emotional, and physical care and responsibility from the time of birth – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 802.212, 802.221
CASES
Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 December 2021 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 May 2019. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.212.
The delegate refused to grant the visa on the basis that cl 802.212 was not met because the delegate was not satisfied that the visa applicant was the child of the sponsor on the basis of DNA test results which indicated that he was not the biological father and concluded that there is no scope under s5CA of the Migration Act or the Family Law Act for the nature of the relationship between the visa applicant and sponsor to be considered. The delegate also found that there was no evidence the visa applicant was adopted by the sponsor. Therefore the delegate found the applicant is the child of his mother and an unidentified father.
The applicant, represented by his migration agent and the sponsor, Mr Benson Kiangali, appeared by video link before the Tribunal on 4 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Margaret Kiangali, wife of the sponsor.
The issue in the present case is whether the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kiangali (Migration)

Details

AGLC: Kiangali (Migration) [2022] AATA 5194
Case: [2022] AATA 5194
Decision Date: 5 August 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an eight-year-old boy born in Papua New Guinea. The applicant was sponsored by Benson Kiangali, an Australian permanent resident, who identified the applicant as his "natural child." The applicant's mother was identified as Rennie Pisak. The Department of Home Affairs had requested DNA testing, indicating insufficient evidence to demonstrate the child-parent relationship, and also questioned the late registration of the applicant's birth. The Administrative Appeals Tribunal (AAT) considered the evidence, including birth certificates, consent forms, and statutory declarations, as well as the sponsor's assertion of financial, emotional, and physical care and responsibility from birth.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 802 visa, specifically concerning the child-parent relationship and the definition of a "dependent child" in the context of the visa subclass. This involved assessing whether the evidence sufficiently established the claimed relationship, even in the absence of definitive DNA test results at that stage, and considering the broader aspects of care and responsibility beyond biological parentage. The Tribunal also had to address the discrepancy in the birth registration date.

The Tribunal reasoned that while DNA testing was offered due to insufficient evidence, the existing documentation, including the sponsor's declaration of financial support and the mother's consent for the sponsor to assume full care and responsibility, provided a basis for finding that the applicant met certain criteria. The Tribunal concluded that the applicant met the criteria under cl 802.212 and cl 802.221 of Schedule 2 to the Migration Regulations 1994. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that these specific criteria were met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground and Evidence before Department The applicant is an 8 year old boy born in Papua New Guinea (PNG) and PNG national. He is currently residing in Australia, having arrived here on 2 March 2019 on a Visitor visa. In his visa application, the applicant refers to the following as his parents, Benson Kiangali (the sponsor) and Margaret Kiangali, who reside in Australia, Rennie Pisak and Kevin Pisak, who reside in PNG. He also refers to 5 siblings, three in Australia and 2 in PNG. He provides one residential address in PNG from birth to March 2019 in Gereka Village, Central Province. The application is sponsored by Benson Person John Kiangali, born in 1964 in PNG, and an Australian permanent resident. He refers to the applicant as his ‘natural child’, and names Rennie K. Pisak, of Gereka Village, Central Province, as the natural mother, who has ‘shared custody according to law’. The sponsor names one other dependent child residing with him, born in 2008. The sponsor is married to Margaret Imelda Bessie Kassman-Kiangali, who is also a PNG- born, Australian permanent resident. Included in the application, among other documents, was a copy of the applicant’s birth certificate, registered on 24 April 2017, stating his date of birth and identifying his mother as Rennie Vagi and father as Benson Persan Kiangali. Also included was a signed Form 1229, Consent to grant an Australian visa to a child under the age of 18 years, signed on 27 May 2019 by the sponsor as father and Rennie Pisak as mother of the applicant. Ms Rennie Vagi (Kevin) Pisak also provided a Statutory Declaration dated 2 March 2019 stating she is the natural mother of the applicant, and the sponsor is the natural father of the applicant and has been supporting him financially since his birth in May 2014 and the child has spent time with the sponsor, his natural father and his family as well as her family since birth; and that she consents for his travel with his natural father and his family; and consents to release the applicant from her care and responsibility to the full care and responsibility of his natural father and his wife for his upbringing and care as she is unable to do so personally and consents for the applicant to live with his natural father and his family. On 20 April 2020 the Department wrote to the applicant with an offer to undertake DNA testing on the basis that there was insufficient evidence to demonstrate he is a child of the visa holding parent. The letter invited the applicant to provide any other information to demonstrate the claimed family relationship, including an explanation on why the applicant’s birth was registered in 2017 when he was born in 2014. The applicant and sponsor accepted the offer to undertake DNA testing, although the process was delayed by the circumstances of the COVID 19 pandemic.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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:·cl 802.212 of Schedule 2 to the Regulations; and·cl 802. 221 of Schedule 2 to the Regulations.Meena SripathyMember

Ratio Decidendi

Legal Principle Established

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