Kiangali (Migration)
[2022] AATA 5194
•5 August 2022
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 remittedLEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 802.212, 802.221CASES
Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130STATEMENT 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 is a dependent child of the sponsor.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background 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.
On 19 October 2020 the Department received the DNA test results from Identilab that was completed on 15 October. Identilab advised that ‘Benson Persan KIANGALI is excluded from identification as the father of Bradly Benson Kiangali’.
On 17 December 2020 the Department wrote to the applicant with an invitation to comment on the adverse information it had received that Benson Persan KIANGALI is excluded from identification as the father of Bradly Benson Kiangali.
The following relevant documents and information were submitted and are included in the Department file:
·Statement dated 14 January 2021 by the sponsor, stating that the DNA test result came as a huge surprise and blow to him and his family. DNA testing is not a norm in PNG, customarily and traditionally. He believed the applicant was his biological child from the time of his birth and took full responsibility for him, despite the adverse impact on his marriage at that time. The DNA result presents a dilemma for them. They love their child and wish for him to remain with their family. He requests an extension of time to obtain documentation to verify the relationship with the family and organise for legal adoption papers.
·On 28 April 2021, the applicant provided the Department a statement, dated 19 April 2021, from the biological mother giving full custody to the sponsoring father and explaining the circumstances about his paternity. In this statement the mother acknowledged the outcome of the DNA tests and reconfirmed her consent for the applicant to remain in the custody of the sponsor.
·Copy of applicant’s new passport issued in March 2021 and Form 929 advising of these details was signed by the sponsor on his behalf.
·Statutory Declaration dated 27 May 2021 by the sponsor declaring that he believed from the time of birth of the applicant, on information from the birth mother, that he was the biological father and took responsibility as such for the applicant since then for his financial and physical needs. Physical custody of the child has been with himself and his wife, Margaret since November 2016 and their family members in PNG, until the applicant was finally granted a visa to travel to Australia in February 2019, where he has lived with the sponsor and his immediate family to date. The declarant acknowledges the DNA outcome and notes the reaffirmation of the consent of the birth mother for the applicant to remain in his custody. The declaration explains the difficulties he has had to contact the birth mother to organise further documentation. A copy of the birth mother’s earlier Statutory Declaration dated 2nd March 2019 consenting to releasing the applicant into the care and responsibility of the sponsor and his wife and permission for him to migrate to Australia with them was also attached; as was a Statutory Declaration from her dated 5th January 2019, which explained among other things, that an original birth certificate issued in 2015, used to obtain his passport issued on 15 May 2015 was misplaced and unable to be replaced. Therefore a new birth certificate was issued from the newly established NID (formerly Civil Registry).
·On 25 August 2021 the applicant’s representative informed the Department that the sponsor commenced consent proceedings in the Port Moresby Family Court for orders relating to the applicant, and requesting the application be on hold until an outcome is secured.
·In November 2021, the applicant’s representative informed the Department that the sponsor has been experiencing difficulties in PNG due to the circumstances of the COVID 19 pandemic and 3rd wave outbreak and seeks further time.
On 6 December 2021, the Department declined to provide a further extension of time to respond to the invitation to comment letter sent on 17 December 2020.
On 6 December 2021 a decision was made to refuse the application, for the reasons indicated above.
Evidence before the Tribunal
An application for review of this decision was received by the Tribunal on 21 December 2021.
On 18 March 2022 the Tribunal invited the applicant to a hearing on 19 April 2022. Following a request for postponement of the hearing by the applicant’s newly appointed representative, the hearing was rescheduled for 4 August 2022.
On 21 July 2022 the Tribunal received written submissions and supporting documents from the applicant’s representative. The attachments include the following new documents, in addition to other documents already included in Department file and referred to above:
·Statutory Declaration by Margaret Kassman-Kiangali dated 17 June 2022
·Statutory Declaration by Sponsor dated 16 June 2022
·Statutory Declaration by Thomas Mapy Nauri dated 16 June 2022, close blood-related cousin of sponsor, who lived at sponsor’s family home and knows of the applicant since his birth
·PNG Civil Registration and Vital Statistics Action Plan (2020-2021)
·Attestation by Sussan Owen and Damien Owen dated 15 June 2022, long term friends of Margaret and Benson Kiangali, attesting to observations of care given to the applicant by the Kiangalis.
·Applicant’s school documentation at St Therese School, Bentley Park, QLD; Record of Baptism on 9 June 2019 naming sponsor and his wife as parents
·Photos of applicant with family and PNG community in Cairns
·Court documents relating to Parenting Orders in favour of Benson and Margaret Kiangali dated 23 December 2021; and Consent to Adoption under Adoption of Child Act (Customary Adoption) – indicating Rennie Pisak consents to the Customary Adoption of Bradley Benson Kiangali by Benson Kiangali and Margaret Kiangali dated 29 March 2022; Certificate as to Customary Adoption under Adoption of Children’s Act (Customary Adoption) 1969 dated 14 March 2022.
The representative submitted that at the time of application, the applicant had, since November 2016, been customarily adopted by the sponsor according to PNG cultural practices and law. It was argued that the applicant was and is the ‘adopted child’ of the sponsor within the meaning if that term in r.1.04(1)(c) and therefore comes within the meaning of ‘child’ in s5CA of the Act. The submissions address the relevant requirements of ‘adoption’ in r.1. 04(1)(c), specifically that the ‘arrangements were made in accordance with the usual practice, or a recognised custom in the culture or cultures of the adoptee and adopter; the child -parent relationship between the adoptee and adopter being significantly closer that any other such relationship; formal adoption not available or reasonably practicable; and the arrangements not being contrived to circumvent migration requirements. The submissions refer to attached evidence (referred to above) in support.
Tribunal hearing 4 August 2022
Evidence from Benson Kiangali
The Tribunal took oral evidence by phone from Mr Kiangali. It asked him about his current circumstances, circumstances of the applicant, history of his involvement in the applicant’s life and situation since the present application was made. A summary of his evidence follows.
The witness lives in Port Moresby, PNG and is there now. He returned last month, after a visit to family in Cairns. He mostly lives and works in PNG in an accountancy business he owns there. Prior to COVID 19 he travelled back and forth between Australia, where his immediate family live, and PNG but since 2020 he has mostly been stuck there.
The applicant lives in Cairns with the witness’ wife, Margaret, and daughter of their relationship, Belenda. Apart from these children, he has two other, now adult sons from an earlier relationship who live elsewhere in Queensland and he and his current wife have customary adoption/foster-like arrangements with three children in PNG (all adults now in their 30’s).
The Tribunal asked about the history of the witness’ involvement in the applicant’s life. He said the applicant’s mother worked for him in his real estate office and they had an affair for a year or so. She was married at the time but was having problems in her marriage, and to his knowledge was living separately from her husband. She informed him that she was pregnant some months into the pregnancy and he recalls he took her to several doctor appointments during the pregnancy. As far as he knew she was not seeing anyone else during that time so he had no reason to not accept it when she told him the child was his.
The witness said he first met the applicant when he was 2-3 months old. The mother and her sister brought the baby to see him. At this time the mother was living with her sister and mother because the child, born outside of the marriage, had caused an issue in their relationship. The witness said that the applicant was given his name by the witness and he commenced financial responsibility for the applicant. He said he did not tell his wife, Margaret, about the affair or the child for some time because it was very difficult for him. Eventually he told her and she was not very happy about it. They had some arguments and it took some time to resolve. He gave her time to adjust. He was back and forth between PNG and Australia in this period.
When the applicant was around 2 years old Margaret and their daughter came to PNG for a visit and met the applicant. At this time he was living with his maternal grandmother and aunty, and they brought him. When they met the child, Margaret felt sorry for him, realising that the mother was not involved in his upbringing. From this time she agreed for the applicant to come into the care of the Kiangali family and agreed to bring him to Australia. The witness said his extended family were all fully aware of the applicant by this time and he was fully financially responsible for him. From this time on the applicant came to live with him (when he was in PNG) and the Kiangali family.
From around 2017, they started the process to bring the applicant to Australia. The witness was not familiar with the earlier refusal of visa applications because his wife was handling those matters. He knew the visa was granted in 2019, after they were able to get the consent form signed by his mother, and the witness travelled with him to Australia.
In 2015 the applicant’s birth was first registered and a passport was obtained for him with this birth certificate document. The witness was named as the father on that birth registration. That document was misplaced and later they obtained a new birth certificate.
The witness said he does not know why DNA was requested by the Department when this application was lodged. He did not hesitate to undertake the test because he had no doubts that he was the father. When the results came he was devastated, and felt some anger towards the mother. However, by then he had established a strong bond with the applicant and considered him his son. The results of the DNA did not change this feeling he had for the child. He said he has not had any contact with the mother until recently for the purposes of getting her signature on the papers for the adoption. The Tribunal noted that a Statutory Declaration was provided to the Department from her in 2019 and asked how he obtained this. He said she lived in a village and it was very difficult to locate her, his relatives sought her out to get her signature on the necessary forms. He said since he has had the DNA results he has not had direct communication with her apart from once when he obtained her signatures on the forms to obtain the court orders. She did not wish to discuss the issue. He has never had contact with her husband.
The witness told the Tribunal that the applicant knows him as his father and he has no intention of telling him otherwise until he is older. He reiterated that it changes nothing about the way he feels about the applicant.
The Tribunal discussed with the witness that some aspects of his evidence of the history of his involvement with the applicant and knowledge of his wife about it differs from his wife’s account in her Statutory Declaration dated 17 June 2022 and invited his comment on that. He said that he is not that good with timeframes and dates and Margaret is better about such things. He also said it is possible, as a woman she may have known about the situation before he told her, because she may have heard from other family members.
Evidence from Margaret Kiangali
The witness confirmed her address and that she lives with the applicant and her daughter, Belenda. The children attended the same primary school until her daughter started high school this year. She gave consistent evidence about other children she and her husband have in their lives, including two step sons in Australia and (now adult) foster children in PNG. She told the Tribunal she came to Australia in 2009 and has been living her permanently since then. She is working and presently has two jobs.
Regarding her knowledge of the applicant, she said she was told about him after his birth by her husband. He told her he had an affair and a child was born of the relationship. She took it hard at the time but eventually came to terms with it. After a lot of discussion she and her husband and daughter agreed to include the applicant in their family. She was aware that her husband was providing financial support for him. She said she was told by her husband about the applicant a few weeks or moths after his birth. He told her in person when he returned to Australia. At that time the applicant was living with his maternal grandmother and aunty.
She met him in November 2016 in person during a visit to PNG. After that he moved to stay with her husband’s family. From 2016 -2019 the applicant lived with her husband when he was in PNG and his relatives. She tried to apply for a visa for him to come to Australia several times since 2017 but it was initially refused because the Department could not contact the mother.
The witness was asked if she had met the applicant’s birth mother. She said she met her long ago before the applicant was born, when she worked in Benson’s office. She has not met her since then. When questioned about the Statutory Declaration she provided in 2019, the witness said that Benson’s relative, Thomas, travelled with the applicant and Belenda to her village to obtain this.
Regarding his passport she said that the first passport was obtained by Benson and the applicant’s mother in 2015, relying on his birth certificate. After that the birth certificate was misplaced and they had to apply for another one. The second passport was obtained in Australia through the Consulate here. It took over a year to be issued from PNG. They used the old passport and the birth certificate to apply for the new passport.
The witness said when Benson was invited to do DNA testing he agreed willingly because he was confident he was the father. He was shocked by the result. They all felt shock and disbelief and a lot of mixed emotion because they had treated the applicant as family from the beginning. They considered him Benson’s child since birth. Then they came to terms with the information and realised that regardless he is still their child and it makes no difference. She has not observed any difference in Benson’s relationship with the applicant since then. The child has no knowledge of the results. He also has no recollection of his birth mother or relatives in PNG. He believes Benson and she are his parents and Belenda is his sister, they are the only family he knows. He is too young now and they have discussed that they will not tell him until he is older.
The witness said to her knowledge no one has claimed paternity for the child. When asked about the birth mother’s husband she said as far as she knows he has a history of violence towards his wife and the circumstances of the applicant’s birth caused many problems for her, including (she had heard) domestic violence.
The witness reiterated that they love the applicant a lot. He has been in their lives for so long. The decision of the Department is not in his best interests. They wish for him to remain in their family here in Australia.
The Tribunal discussed with the representative her submissions. It put to her that it has some concerns about whether it is open on the factual circumstances at time of application to argue a customary adoption given that at that time the sponsor believed he was the biological father. It indicated that it is more inclined to take the approach that a broader interpretation of s5CA is open, although it noted that the argument and evidence of customary adoption and existence of court orders to confirm this now may be relevant to other applicable public interest time of decision criteria. The representative indicated that she had no further comment and was agreeable to this.
Dependent child criteria
The criterion in cl 802.212 essentially requires that, at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a).
Section 5(1) provides that a ‘child’ of a person has a meaning affected by s 5CA.
Section 5CA provides:
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b) someone who is an adopted child of the person within the meaning of this Act.
(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
In the Tribunal’s view, s 5CA does not exhaustively describe who can be considered as a ‘child’ of a person,[1] however it links the meaning of ‘child of a person’ under the Act to the meaning of ‘child of the person’ in the Family Law Act 1975 (Cth) (Family Law Act). The Tribunal observes that the Family Law Act also does not precisely define who is a ‘child’, the relationships that are child-parent relationships, or the concept of a ‘child of a person’. Notably, it provides for situations where biological fathers are not parents and for people who may have the status of parents even where they are not biologically or through adoption related to a child by operation of s 60H of the Family Law Act, though generally a child-parent relationship under that Act refers to the relationships between a child and each of his or her biological parents.
[1] See for example obiter comments of Emmet FM in Nakad v MIAC [2013] FMCA 234
The Tribunal accepts that given the link in s 5CA(1)(a) of the Act to the Family Law Act, a ‘child of a person’ under the migration law clearly includes a biological child of a person. The issue arising in this case is whether it is limited to only recognise biological connection or whether it also permits consideration of circumstances where there is no biological connection between the child and the putative parent.
Section 5CA(2) provides for persons to be prescribed in the Regulations as not being a ‘child of a person’ for migration law purposes. This provision is enlivened in r.1.14A (Parent and Child) and specifically refers to where a child is adopted -the child is taken to be the child of the adoptive parent or parents and taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption). The Tribunal acknowledges the argument submitted on behalf of the applicant is that the arrangements between the sponsor and applicant can be considered as a customary adoption within the meaning of that term in r.1.104(2)(c).
The Tribunal has considered these arguments and submissions but has decided it is not necessary to make findings about whether all of the requirements of r.1.04(2)(c) are met in this case. While it accepts that financial and physical responsibility for the child had been undertaken by the sponsor from the time of the applicant’s birth, the basis for this was his mistaken belief that he was the biological father of the child rather than under customary or traditional arrangements. On the other hand, the applicant’s maternal grandmother and aunty, in taking care and responsibility for him in the early years, appear to have undertaken this role under a customary or traditional practice of caring for a child of a close relative. The submissions argue that they handed over responsibility to the sponsor and his wife in 2016 in accordance with a customary practice involving mutual exchange of food and money. Ultimately, the Tribunal does not consider it necessary to reach a conclusive view on whether these circumstances can be recognised under customary adoption, or whether formal adoption was not reasonably practicable because the Tribunal has taken a different view on the scope of s5CA, as discussed further below.
Relevant recent judicial authorities have considered statutory definitions of ‘parent’ and found that they are not ordinarily limited to biological parents. In a recent Full Federal Court decision in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 which involved a cancellation under s109 of the Migration Act, the Full Court considered the concept of ‘parent’ in the Births, Deaths and Marriages Registration Act 1995 (NSW). The court noted that the concept of “parent” is undefined in the BDMR Act and observed,
As decisions both in Australia and the United Kingdom demonstrate, statutory definitions of the term “parent” are not ordinarily limited to a biological parent (Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [47]-[49] per Moore, Kenny and Tracey JJ; In re G (Children) [2006] UKHL 43; 4 All ER 241at [33]-[37] per Hale LJ). Referring to Baroness Hale of Richmond’s observations Inre G (Children), the plurality in Masson stated at [29] as to the meaning of “parent” under Div 2 of Pt VII of the Family Law Act 1975 (Cth):
… according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.
Similar remarks were made by the Full Court in H v Minister, which concerned two appeals which raised the issue of whether “parent” in s 16(2) of the Australian Citizenship Act 2007 (Cth) was confined to “biological parent”. As to the ordinary meaning of the word “parent”, the Full Court remarked at [48]:
While often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.
At [130], the Full Court made the following observations concerning the AAT’s statutory task under the Australian Citizenship Act:
The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge (emphasis added).
With these observations in mind (while also being mindful of the dangers of transposing the construction given to a particular term in different statutory contexts), it is apt to note immediately that there is nothing in the terms, context or purpose of the BDMR Act which suggests that the meaning of parent is confined to “biological parent”.[2]
[2] Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 at [95]- [98]
At [104] Griffiths and Abraham JJ stated
As the authorities make clear, both the meaning of the ordinary meaning of the word “parent”, and whether a person qualifies as a “parent” are questions which fall to be determined in the “circumstances of the particular case” (Masson at [29]; In re G (Children) at [33] per Hale LJ; H v Minister at [130] per Moore, Kenny and Tracey JJ). The categories of cases in which a person may be held to be a parent are not closed, nor could they be, given the continuing evolution of the concepts of parents and families in Australia’s modern society.
The Tribunal notes that the judgement in H v Minister for Immigration and Citizenship [2010] FCAFC 119 referred to above, is the Minister’s appeal to the Federal Court of the decision of the AAT in Vanessa McMullen and Minister for Immigration and Citizenship [2009] AATA 638. In addition to the passages cited above, the Tribunal notes the following at [129]:
Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.
Taking into account the discussions in the authorities cited above that considered the meaning of ‘parent’ in other legislative contexts, and the provisions of the legislation relevant to this matter extracted above, the Tribunal is of the view that s 5CA does not provide an exhaustive, definitive definition of who can be considered a ‘child of a person’. A plain reading of the opening words ‘without limiting who is a child of a person’ makes that clear. As a corollary, the Tribunal is of the view, unlike the delegate, that the fact the applicant is not the biological child of the sponsor, of itself, does not preclude him from being the child of the sponsor. The Tribunal does not agree that there is no scope under section 5CA of the Migration Act, nor under the Family Law Act, for the nature of their relationship to be considered, for the reasons explained above. The question of whether he is the child of this person is a question of fact for the Tribunal.
Applying principles and observations from the authorities cited above to the facts and circumstances of the present case, the Tribunal makes the following findings. It accepts on the oral and documentary evidence before it, that Benson Kiangali was involved in an extramarital affair with the applicant’s mother prior to and around the time of the applicant’s birth. It accepts that as a result of this, he accepted when she informed him that he was the biological father and assumed that he was. It accepts that he was registered on the birth certificate originally registered in 2015, as father. The child’s name, which included his first and family name, also supports this early acknowledgment and involvement in the child’s life. The Tribunal accepts, on the oral and declaratory evidence of the sponsor and his wife, that he disclosed the existence of the applicant to his wife and, after an initial period of marital difficulty, they agreed to take full responsibility for the applicant and he commenced living with the sponsor and his family in PNG from around 2016. The Tribunal accepts that the evidence of applications for visitor visas and interactions with the Department from 2017 onwards supports their accounts. The sponsor’s agreement without hesitation to undertake DNA testing further supports his assumption of paternity and claims relating to his involvement in the applicant’s life. It accepts that the outcome of the DNA testing came as a total and huge shock to him and his wife, given their full and complete acceptance of the applicant into their family by this time. The Tribunal accepts that responses from the sponsor and his wife, taken separately, of the shock and disbelief of the news of the DNA tests was credible and authentic. It also accepts their evidence that, after digesting the information, it did not change the sponsor’s relationship with the applicant as his son. The sponsor clearly told the Tribunal that the applicant has been his son since birth and he continues to see him as his son and nothing has changed that. His wife consistently gave evidence that nothing has changed in the way they see themselves as a family.
There is no evidence of any other identified person who is the biological father of the applicant, or any evidence of any other person who has a child-parent relationship with the applicant remotely as close as that between the applicant and sponsor.
On the basis of the above findings and evidence, the Tribunal finds the child parent relationship between the applicant and sponsor commenced from his birth and has continued to this date. The sponsor was in a relationship with the applicant’s mother around the time of his birth, has been involved in his life from soon after his birth and from that time fully accepted financial, emotional and subsequently physical care and responsibility for him and accepted and treated him as his son. There is no evidence before the Tribunal of any other person whom the applicant has had a child-father relationship with. The relatively new evidence of the DNA results did not and has not changed the longstanding parent child relationship between them.
For these reasons, the Tribunal concludes the applicant is the child of the sponsor, who is an Australian permanent resident.
Dependent child
At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.
As the applicant in this matter is under 18 years, he is a ‘dependent child’ of an eligible person at the time of application and decision.
Accordingly, cl 802.212 is met at the time of application, and continues to be met at the time of decision, therefore cl 802.221 is met.
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 Sripathy
Member
0
4
0