Lai (Migration)

[2024] AATA 1628

Lai (Migration) [2024] AATA 1628 (15 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chloe Lai

REPRESENTATIVE:  Ms Qing Qin (MARN: 1796643)

CASE NUMBER:  2314365

HOME AFFAIRS REFERENCE(S):          BCC2021/2027189

MEMBER:Sheridan Aster

DATE:15 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets Public Interest Criterion 4017 for the purposes of cl 408.317 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 15 April 2024 at 12:11pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – applicant meets PIC 4017 – permissions required for an applicant under 18 years of age to travel – Chloe’s father was not involved in her care – Chloe is not usually resident in China – Chloe’s home country is Australia – Tribunal finds that the law of Australia permits the removal of the applicant – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cl 408.317

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 24 August 2023 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Miss Chloe Lai is a three-year-old child of Chinese nationality. She was born in Australia on 23 September 2020 and has not departed the country. The applicant supplied the Department of Home Affairs with a birth certificate issued by the Victorian Registry for Births, Deaths and Marriages.

3. Chloe’s mother, Ms Jing Wu, applied for Subclass 408 visas for herself and Chloe on 25 October 2021. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

4. On 25 October 2021, the delegate refused to grant Subclass 408 visas to both Ms Wu and Chloe on the basis that evidence of criminal history was not provided with the application. Ms Wu applied to the Tribunal for merits review of that decision. The Tribunal received a National Police Certificate dated 22 August 2022, issued to Ms Wu, reporting no disclosable court outcomes. In light of the new evidence received, the Tribunal remitted the application to the Department for reconsideration on 20 September 2022.

5. On 24 August 2023, Ms Wu’s application for a Subclass 408 visa was approved. However, the delegate was not satisfied that Chloe’s application complied with Public Interest Criterion 4017, which relates to the permissions required for an applicant under 18 years of age to travel. Consequently, the delegate found that the application did not meet cl 408.317 of Schedule 2 to the Regulations and refused to grant the visa.

6. Ms Wu appeared before the Tribunal on 10 April 2024 to give evidence and present arguments on behalf of Chloe. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. The representative did not appear before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 408.317 of Schedule 2 to the Regulations requires that each applicant satisfy a range of public interest criteria. Public Interest Criterion (PIC) 4017 must be met if the applicant has not turned 18. It requires the Minister to be 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. On 4 August 2022, 3 April 2023 and 19 May 2023 the Department requested additional evidence to show that Chloe could be granted a visa. Ms Wu was requested to provide:

   ·completed and signed Form 1229: Consent to grant an Australian visa to a child under the age of 18 years from both parents listed on Chloe’s birth certificate; or

   ·evidence that one parent has sole legal responsibility/cutody, such as a court order, custody documentation or a death certificate of the other parent; or

   ·evidence that both parents will be accompanying the minor.

10. On 19 June 2023, Ms Wu advised the Department that Chloe’s father was not involved in her care and she was unable to get a signature from him on the necessary form. She requested an extension of time to get a Court order or an exemption from the requirement. Ms Wu was provided with an additional 28 days, but no further information was submitted.

11. The Department did not receive consent from Chloe’s father, Mr Guo Keong Lai. Mr Lai’s place of birth is recorded as Petaling Jaya, Malaysia, on Chloe’s birth certificate. However, the Tribunal has no record of his nationality or evidence as to whether he is located in Australia at the date of this decision.

12. On 24 August 2023, Ms Wu was granted a visa and Chloe was refused. An application for review of that decision was made on Chloe’s behalf and a copy of the decision was provided to the Tribunal with the application for review. The delegate considered that Chloe was unable to satisfy any of the three alternative criteria under PIC 4017. In respect to option a), the decision of the delegate notes that:

    According to the laws of the applicant's home country, the sole circumstance that one parent can decide alone to bring a child abroad is that the other parent is dead or declared to be missing. The only acceptable evidence that custody has been revoked by law is a decision made by the court and a no objection certificate is issued to the raising parent.

13. Ms Wu also provided the Tribunal with a copy of her request for an extension or exemption which was originally sent to the Department, a copy of Chloe’s birth certificate and passport, screen shots of various enquiries she had made with lawyers in respect to obtaining sole custody.

14. At the Tribunal hearing, Ms Wu confirmed that she was unaware of Mr Lai’s citizenship or whereabouts. She had not been in contact with Mr Lai since Chloe was approximately three months old, despite attempts to locate him in the past.

15. Ms Wu gave evidence that there are no Australian child orders in force in respect to Chloe. She considered making an application for sole parental responsibility with an Australian family court, however she had been advised by a lawyer that it would cost her a significant sum and take ten months to be considered.

    Laws of the home country

16. As outlined above, PIC 4017 contains three alternative criteria. If the Minister is satisfied that the law of the applicant’s home country permits the removal of the applicant, the applicant will satisfy PIC 4017.

17. Regulation 1.03 defines home country as:

    ·The country of which the person is a citizen; or

    ·If the person is not usually resident in that country, the country of which the person is usually a resident.

18. On 10 November 2022, Chloe was issued an official passport by the People’s Republic of China. At the hearing, Ms Wu gave evidence that when she applied for the passport, the embassy requested evidence that Chloe’s father was aware of her birth. Ms Wu provided the embassy with evidence that Mr Lai had been present at the hospital for Chloe’s birth and attended the first few appointments with the maternal and child health nurse. The embassy decided to grant Chloe a passport following consideration of the evidence submitted.

19. The Tribunal accepts that Chloe is a citizen of the People’s Republic of China by virtue of being born to a mother with Chinese citizenship. However, she has never been to China. Since she was born in 2020, Chloe has only been physically present in Australia. She has never travelled outside the country.

20. The term ‘usually resident’ is not defined under migration law and should be given its natural meaning, unless the statute requires otherwise either expressely or by implication.[1] The Macquarie Dictionary defines usual as:

    [1] Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519–521.

    ·adjective

    i.habitual or customary

    ii.such as is commonly met with or observed in experience; ordinary

    iii.in common use; common.

    ·noun

    i.that which is usual or habitutal.

    ·Adverb: usually.

21. The Britannica Dictionary states that usually is used to describe what happens or exists most of the time or in most cases.

22. The concept of ‘residence’ has received considerable attention from the Courts. In the taxation case of Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation, Williams J observed that a person’s place of residence is determined ‘by reference to where he eats and sleeps and has his settled or usual abode.’[2]

    [2] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241 at 249.

23. Having considered the definitions above, the Tribunal considers that the notion conveyed by the term usually resident is of the place a person ordinarily resides; the place they live most of the time.

24. The expression, ‘usually resident’ was considered in the context of a now superseded version of reg 1.15 in Gauthiez v MIEA.[3] In that case, Gummow J found that where a person usually resides is a question of fact that the Tribunal must reach having regard to all of the information before it. Further, the meaning of ‘usually resides’ would depend upon the particular legislative context in which the phrase appears. His Honour approved of English authority on the issue of ‘ordinary residence’ which held that the term refers to ‘a man or woman's abode in a particular place or country which he or she has adopted, voluntarily and for settled purposes as part of the regular order of his or her life for the time being, whether of short or of long duration’.[4] Justice Gummow also drew a distinction between citizenship and residence. He commented that in common experience most people reside in the country of which they have citizenship. Nevertheless, citizenship could not, without more, indicate residence.

    [3] Gauthiez v MIEA (1994) 53 FCR 512. The term ‘usually resides’ was considered in the context of ‘usually resides in the same country’.

    [4] See R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309 at [343]–[344].

25. In Gauthiez v MIEA,[5] the Court noted one important exception. It was accepted that if a person's presence in a particular place or country is unlawful, for example by being in breach of the immigration laws, they cannot rely on his unlawful residence as constituting ordinary residence.

    [5] Gauthiez v MIEA (1994) 53 FCR 512. The term ‘usually resides’ was considered in the context of ‘usually resides in the same country’.

26. In the current matter, Chloe has been physically present in Australia since she was born. It is the country in which she eats and sleeps. At three years of age, it would be unreasonable to expect that Chloe had formed her own intention or voluntarily resides in a particular place. In the circumstances, the Tribunal has considered the intentions of her mother. Chloe’s mother has expressed the intention to remain in Australia to work, and she holds a relevant visa to do so, even if temporarily. Chloe has held a substantive or bridging visa for the duration of her stay and is in the country on a lawful basis. In the circumstances, the Tribunal finds that Chloe is not usually resident in China. Australia is the country in which she usually resides.

27. The Tribunal acknowledges that finding Chloe’s home country to be Australia may undermine the intention of the Regulation to ensure that Australia is compliant with its international obligations as a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). However, the Tribunal considers that any alternative finding would go beyond the words of the Regulations and makes the following observations:

    ·The wording of PIC 4017 suggests it was intended to prevent children from being removed from their home country and brought to Australia without appropriate permission. It is not easily applicable to children who were born in Australia and have never been resident in the country they hold citizenship to. The Tribunal cannot interpret the provision in complete contrast to the ordinary meaning of the words in order to ‘cure’ the deficiency of the Regulations as currently drafted without any common law authority.

    ·While the delegate alleged that Chloe’s removal from China would not be permissible under the laws of China, the delegate did not identify or reference any relevant legislation. The Tribunal was unable to locate any laws of China that relate to the movement of children born outside of China to Chinese nationals.

28. Section 12(1)(b) of the Australian Citizenship Act 2007 (Cth) outlines that a person born in Australia is an Australian citizen if the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. While it uses slightly different terminology, the Tribunal notes that if Chloe were to remain in Australia until she were ten, it would be accepted that she was ordinarily resident in Australia throughout her life and she would be granted citizenship under this provision. It would be an unusual outcome if Chloe were accepted as ordinarily resident for the purposes of citizsnship laws but not usually resident under migration laws. Particualrly in circumstances where the term has not been defined under migration laws and the Federal Court of Australia has accepted the applicability to the construction of ‘usually resident’ of a passage from the speech of Lord Scarman in a case in which the House of Lords was construing the term ‘ordinarily resident.’ As was the case in Gauthiez v MIEA, discussed above.

29. In the circumstances of this matter, the Tribunal is faced with the reality of considering whether a child can be removed from a country in which they are not physically present, or considering whether a child can be removed from a country in which they are seeking to remain. Having found that Chloe’s home country is Australia, the Tribunal must consider if her removal would be permitted under Australian law.

30. Section 61C of the Family Law Act 1975 (Cth) states that each of the parents of a child who is not 18 years of age has parental responsibility for the child. This applies to the extent that it is not displaced by a parenting order. However, the Act does not explicitly prevent a parent from taking or sending a child outside Australia unless there is a parenting order in force: s 65Y.

31. There is no evidence before the Tribunal to indicate that there is a parenting order in force that would prevent the removal of Chloe from Australia. The Tribunal finds that the law of Australia permits the removal of the applicant.

32. The Tribunal finds that the applicant meets PIC 4017 for the purposes of cl 408.317 of Schedule 2 to the Regulations.

33. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

34. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets Public Interest Criterion 4017 for the purposes of cl 408.317 of Schedule 2 to the Regulations.

    Sheridan Aster
    Member