Mishra (Migration)

[2024] AATA 1630

Mishra (Migration) [2024] AATA 1630 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Atharv Mishra

REPRESENTATIVE:  Miss Suzette Ann-Mari Pereira

CASE NUMBER:  2306170

HOME AFFAIRS REFERENCE(S):          BCC2022/166671

MEMBER:Jennifer Cripps Watts

DATE:2 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement  made on 2 May 2024 at 5:28pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – ‘child of a person’ – surrogacy arrangement – awarded guardianship and custody of the children in the Family Court in New Delhi – birth certificate issued in India – presumption of legal parentage – ‘prescribed overseas jurisdiction’ – decision under review affirmed

LEGISLATION
Family Law Act 1975 (Cth), ss 4, 69R
Family Law Regulation 1984 (Cth), r 14; Schedule 1A
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 802.212, 802.221

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 17 April 2023 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 February 2023. 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).

3. There is another applicant in a related matter, Tribunal number 2306166, who is the twin of the applicant who is the subject of this decision.  Anaisha Mishra and Atharv Mishra (the children) were born in 2020:  Tribunal case numbers 2306166 and 2306170 respectively.  The children are represented on review by the same legal practitioner, Ms Suzette Ann-Mari Pereira.  The paternal parent entered on each of the children’s Indian birth certificates, Mr Abhishek Mishra (Mr Mishra), appeared at a combined hearing for both review applicants on behalf of the review applicants.

4. 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(1)(a) on the basis of the applicant’s claim to be a dependent child (who has not turned 18 years of age) of a person, relevantly in this case, Mr Mishra who is the holder of an Australian permanent visa.

5. The delegate refused to grant each of the children’s visas on the basis that cl 802.212 was not met because the applicants were found not to be the children of a ‘person’ (as it is defined in s 5CA of the Act) specified in cl 802.212 of Schedule 2 to the Regulations.

6. Mr Mishra appeared at two hearings before the Tribunal.  A request was made by Mr Mishra to appear by video as he is currently living and working in Canada.  This was considered to be a reasonable request and, mindful of the time difference between Australia and Canada, the hearings were scheduled mid-evening Canada time with Mr Mishra’s consent.  Mr Mishra first appeared before the Tribunal by MS-Teams audio-visual to give evidence and present arguments at 1:30pm Australian Eastern Standard Time (AEST).  At the first hearing, after Mr Mishra had given his oral evidence, the representative requested additional time be granted to provide further written submissions.  By agreement with Mr Mishra and the representative, a resumed hearing was scheduled on Friday 5 April 2024 (the resumed hearing) and a second hearing invitation was sent for each applicant to their individual Tribunal case files inviting them to the combined resumed hearing.  Further written submissions were received prior to the resumed hearing.

7. There are no differences between the two applications, other than the case numbers and names and sex of each of the applicants:

   ·Tribunal matter 2306166, Anaisha Mishra, female

   ·Tribunal matter 2306170, Atharv Mishra, male

8. As there are two separate decisions to refuse the visas, and two separate applications made to the Tribunal for review of the decisions, the Tribunal must also make two separate decisions; one for each of the children corresponding with the above Tribunal matter numbers.

9. For the following reasons, the Tribunal has concluded that the decision under review in should be affirmed.

10. With the exception of the above differences, each written decision of the Tribunal in matter 2306166 and 2306172 is in all other respects identical to the other.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is the same as the substantive issue on which the visa was refused.  The Tribunal must be satisfied that the child applicant in this matter is the dependent child of a person as it described in s 5CA of the Act (extracted):

    Section 5CA Child of a person

    (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.

    Background

12. The children, who are now four years of age, were born in India via surrogate  A Gestational Surrogacy Agreement was entered into by Mr Mishra and his wife, Ms Ranu Mishra (Ms Mishra).  On 8 July 2022, the Department was informed that the embryos implanted in the surrogate by In Vitro Fertilisation (IVF) were conceived from donor sperm and donor eggs.  That is, the embryos contained no biological or genetic material of either Mr or Ms Mishra, which is not disputed.  It is not in dispute that the embryos that resulted in the live births of the children were legally owned by Mr and Ms Mishra.  Further, it is not in dispute that Mr and Ms Mishra appear on each of the children’s Indian birth certificates as the parents. 

13. The children have been granted Australian visitor visas previously.  They entered, and resided, in Australia holding the visitor visas before they returned to India with their mother in around January 2024.  Ms Mishra and the children are currently residing with Mr Mishra’s parents in India.  Mr Mishra’s intention is for his wife and the children to join him in Canada where he is currently working.  However, Mr Mishra said that he has strong ties to Australia, where he and his wife have purchased a home with the location for future schooling for their children a primary consideration; and this is why he wants the children to be granted permanent residency in Australia.

14. After the children were born in India in 2020, Mr and Ms Mishra applied to the New Delhi Family Court to make orders that they are the parents of the children.  A Guardianship Order was made by the Family Court in New Delhi India on 2 February 2021; the Guardianship Order awarding guardianship and permanent custody, and the right to take the children outside the jurisdiction, among other things.  A certified copy of the Guardianship Order has been provided to the Tribunal and is titled ‘Guardianship Petition No. 05 of 2021’.

15. The Tribunal has carefully considered the Guardianship Order made by the New Delhi Family Court on 2 February 2021, in India.  It identifies the children as being the two review applicants currently before the Tribunal.  The veracity of the document and information contained in it is not in dispute.  But it is necessary for the Tribunal to be satisfied that Mr and Ms Mishra are the legal parents of the children in Australia for the purpose of the children meeting the primary criteria for the grant of the visas. 

16. In the Court’s judgment dated 9 March 2021, at paragraph 8, it is stated that the ‘court is a Guardian Court Under the Guardians and Wards Act, 1890’.  The Tribunal accepts, as it is clear from the wording of the judgment, that the Court found it to be in the interests of the children for Mr and Ms Mishra to be awarded ‘guardianship and custody’ of the children. 

17. At paragraph 11 of the judgment is the following, noting that petitioners no 1 and 2 are Mr and Ms Mishra:

    ‘Accordingly, the petition is allowed and petitioners no.1 and 2 are appointed as lawful guardians of the minor twins Master Atharv Mishra and Baby Anaisha Mishra.  The petitioners are also entitled for (sic) permanent custody of the twins.  The petitioners are at liberty to take the twins along with them, to their place of residence, situated outside the jurisdiction of country of India, being the legal guardians’.

18. The Gestational Surrogacy Agreement dated 2 May 2019 was accepted by the Court as a legal agreement in India.  It is accepted by the Tribunal that Mr and Ms Mishra were awarded legal guardianship of the twins, with reference to the New Delhi Family Court Order, ‘Announced in the Open Court on 09^th March 2021’.

19. To meet the primary criteria for a subclass 802 child visa the applicant must the child of a person, in summary and relevantly in the circumstances of this case, a dependent child, under 18 years of age, of Mr Mishra (who is an Australian permanent resident): cl 802.212 of Schedule 2 to the Regulations.

20. A ‘Child of a Person’ is defined in s 5CA of the Act, as follows:

    Section 5CA Child of a person

    (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.

21. There is reference to, and requirements described for, children who are ‘adopted’.  However, the children in the two related cases currently before the Tribunal have not been adopted by Mr Mishra.  The question of adoption was discussed with him at the Tribunal hearing.  Mr Mishra said he had considered adoption in India but that he believed it would take a long time because he no longer knows the whereabouts of the surrogate who he and his wife entered into the Gestational Surrogacy Agreement with, which would make the process very difficult. 

22. The children must each be the child of a person with the meaning of and with reference to s 69R of the Family Law Act 1975. The primary question that arises, is whether India is a ‘prescribed overseas jurisdiction’ for the purpose of the Tribunal being satisfied that Mr and Ms Mishra, as they have submitted, relying on their names being certified as the legal parents of the children on the children’s Indian birth certificates, is enough to ‘establish parentage’ in Australia.  Mr Mishra had previously indicated, at the time of application, that he was intending to make an application for a parentage order in New South Wales.  At the Tribunal hearing, Mr Mishra confirmed that he did not pursue this course of action.  It is not therefore a matter that is material to the question on review for the Tribunal.

    The Family Law Act 1975 (FLA)

23. In this case there has been no claim made, nor is there evidence before the Tribunal, that the children are adopted.  Therefore, the applicant must be the ‘child of the person within the meaning of the Family Law Act 1975’.  The ‘person’ in this case is Mr Mishra, an Australian permanent resident. 

24. An extract from the applicant’s written submission in support of the application, received by the Tribunal on 5 April 2024, is as follows:

    ‘…Presumption of parentage

    7.In accordance with section 69R of the Family Law Act 1975 (Cth) it states that “If a person's name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child”. Attached at Annexure D.

    8.As previously noted, following from the Court Orders, Mr Mishra and his wife arranged for a birth certificate from the Department of Planning, Economics and Statistics in India, for the Applicants which addresses both Mr Mishra and his wife as the legal parents of the Applicants.

    9.However, in determining if whether the birth certificates of the Applicants illustrates presumption of parentage pf Mr Mishra and his wife in accordance with paragraph 7 above, it is imperative to draw attention to the definition of “prescribed overseas jurisdiction”. At regulation 14 of the Family Law Regulation 1984 (Cth) it states (attached at Annexure E):

    For the purposes of the definition of prescribed overseas jurisdiction in subsection 4(1) of the Act:

    (a)each country or part of a country, set out in column 2 of an item in Schedule 1A is declared to be a prescribed overseas jurisdiction for the purposes of:

    (i)subsection 4(1) of the Act, in relation to the definition of overseas child order; and

    (ii)       sections 70M and 70N of the Act; and

    (b)each country, or part of a country, set out in Schedule 2 as a reciprocating jurisdiction is declared to be a prescribed overseas jurisdiction for the purposes of:

    (i)subsection 4(1) of the Act, in relation to the definition of overseas maintenance agreement; and          

    (ii)       paragraph 89(b) of the Act.

    10.At Schedule 1A of the Family Law Regulation 1984 (Cth) it provides a list of countries or part of countries that are defined as prescribed overseas jurisdiction. It is apparent that India does not form part of this list and for the purposes of Schedule 1A it is not a prescribed overseas jurisdiction as defined at sub-regulation (a) at paragraph 9. This schedule is attached at Annexure F.

    11.When looking at subsection (b) of regulation 14 (referred to at paragraph 9 above) a reciprocating jurisdiction is declared a prescribed overseas jurisdiction in terms of overseas maintenance agreements. It can be seen at Schedule 2 of the Family Law Regulation 1984 (Cth) (attached at Annexure G), India appears on this list and as the Court Orders determines the maintenance of the Applicants, therefore, India is considered a prescribed overseas jurisdiction in accordance with regulation 14.

    12.According to this, the birth certificates of the Applicants meet the requirements of presumed parentage of Mr Mishra and his wife and can be deemed as the parents of the Applicant.’

25. The Tribunal has carefully considered the written and oral submissions of the applicants’ representative, the oral evidence given by Mr Mishra and other relevant information in reaching its decision.  The applicants’ written submission, and in particular the above extract, was discussed at the hearing. 

26. Essentially, the applicants’ representative has sought to persuade the Tribunal, for the purpose of the applicants meeting s 69R of the FLA, that India is a prescribed overseas jurisdiction on the basis that it is a reciprocating jurisdiction. The concluding argument of the applicants is that India is a ‘prescribed overseas jurisdiction through the classification of it as ‘a reciprocating jurisdiction’ because the Order made in the Family Court in India determines maintenance of the children and it is therefore India is a ‘reciprocating jurisdiction’ for the purpose of being a ‘prescribed jurisdiction’ to meet reg 14; that ‘the children’s birth certificates are sufficient to establish parentage’; and that Mr and Ms Mishra are therefore the legal parents of the children in Australia.

27. The Guardianship Order, awarding permanent custody of the children and appointment Mr and Ms Mishra as guardians.  It is a guardianship order, not an adoption or a child maintenance order.  While it may be the case that the children’s birth certificates, naming Mr and Ms Mishra as their parents, is enough to establish parentage in India, it does not follow that the Guardianship Order made by agreement with the gestational surrogate, who entered into the Gestational Surrogacy Agreement, and her husband, means that Mr and Ms Mishra are the legal parents of the children in Australia.

28. The Tribunal’s view, having carefully considered all information before it relevant to the material issue on review is this. Section 69R of the FLA provides that if a person's name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.  Essentially, in the circumstances of this case, the Tribunal must be satisfied, for ‘the person’ to be the parent of the child, that India is a ‘prescribed overseas jurisdiction’, as the alternative is not applicable in this case.

29. The term ‘prescribed overseas jurisdiction” is defined in section 4(1) of the FLA as any country, or part of a country, outside Australia that is declared by the regulations to be a prescribed overseas jurisdiction for the purposes of the provision in which the expression is used. 

30. Section 4(1) defines ‘ prescribed overseas jurisdiction’ in summary as a country in column 2 of Schedule 1A of the FLA Regulations.  It is a factual matter that India is not included in column 2 of Schedule 1A of the Regulations as a ‘prescribed overseas jurisdiction’.   

31. The Tribunal has concluded, on its reading of the FLA, and consideration of submissions and evidence of the applicant, that India is not a ‘prescribed overseas jurisdiction’ for the purposes of s 69R of the FLA and, for that reason, the birth certificates of the children certifying Mr and Ms Mishra as the parents do not support a claim of a presumption of their legal parentage of the children in Australia.

    Dependent child criteria

32. 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).

33. The Tribunal accepts that there is a Guardianship Order that was made in the Family Court in New Delhi and a birth certificate for each of the children issued in India naming Mr and Ms Mishra as the parents of the children, and that the children are under 18.

34. However, for the reasons above, the child is not the child of a person within the meaning of the Family Law Act 1975, and therefore the criteria in cl 802.212 is not met at the time of application.

35. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.  There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Jennifer Cripps Watts
    Senior 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.

    …