Mustafa (Migration)

[2023] AATA 4445

Mustafa (Migration) [2023] AATA 4445 (15 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hind Aadil Osman Mustafa

VISA APPLICANT:  Master Ahmed Nazar Mohamed Osman

CASE NUMBER:  2105068

HOME AFFAIRS REFERENCE(S):          2018006414

MEMBER:Kira Raif

DATE:15 December 2023

PLACE OF DECISION:  Sydney

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 criteria for a Subclass 101 (Child) visa:

·cl 101.226 of Schedule 2 to the Regulations

Statement made on 15 December 2023 at 9:53am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – law of home country permits removal of applicant and consent of person who can lawfully determine where applicant is to live – abandoned at mosque and father unable to be located – some evidence of father’s interest in child and parent-child relationship continues to exist – affidavit giving consent found to be bogus – effect of recent amendments to home country law – applicant now 18 and criterion no longer applies – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cl 101.226, Schedule 4, criterion 4017

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 4 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a national of Sudan, born in December 2005. He applied for the visa on 5 March 2018. The delegate refused to grant the visa on the basis that cl 101.226 was not met because the delegate found that Public Interest Criterion (PIC) 4017 was not met. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 5 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

4. 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).

5. 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, which requires that if the visa applicant has not turned 18, the visa applicant must meet PIC 4017 and PIC 4018. PIC 4017 relevantly provides

   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.

   Does the visa applicant meet PIC 4017 and PIC 4018?

   Primary decision

6. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant included with the application a number of documents, including his birth certificate naming his parents as Hind Adel and Nizar Mohamed Osman. The visa applicant included a judicial authority from his father and other materials. The primary decision indicates that the father’s affidavit dated 26 January 2015 was found to be a bogus document. The sponsor was invited to comment on that information. The sponsor provided to the Department evidence concerning the legal changes in Sudan, permitting women to travel with minor children without the approval of a male relative. The delegate noted, however, that the relevant legislation was the Personal Status Law 1991 which relevantly provides that a divorced mother is entitled to the custody of children until they are 7 or 9 year old while the father or male guardian maintains scrutiny of all matters relating to the raising of the children. The delegate noted that there was no evidence that Sudan’s  Personal Status Law 1991 had been abolished or that the guardianship rules had been amended or repealed. With respect to the affidavit from the child’s father, the delegate noted that this was not a document issued by a court (and therefore did not reflect the legal position). The delegate concluded that PIC 4017(a) was not met.

7. The delegate noted that the father’s affidavit was found to be a bogus document. In response to the natural justice letter, the sponsor stated that she was not involved in the preparation of that document. The sponsor claimed that she appointed a lawyer in Sudan, as she was unable to contact the children’s father and was fearful to do so due to the past family violence, and she assumed the documents would be genuine. The applicant provided a submission on the waiver of PIC 4020. Ultimately, the delegate was not satisfied that the child met PIC 4017 and cl. 101.226.  Although the delegate considered that the father’s consent constituted a bogus document, no finding was made in relation to PIC 4020.

8. There is additional information on the Departmental file which states the following. The review applicant was interviewed in September  2009 in relation to an earlier visa application and she stated that she took the children from Sudan to Egypt with the help of another person without the knowledge of the children’s father as their father took the children from her by force. In the 2016 application the review applicant claimed during an interview conducted in March 2017 that she left the children’s father because he was abusive towards them. The sponsor claimed that the children’s father did not know they were in Egypt otherwise he would forcefully bring the children to Sudan to live with him. The review applicant stated that the children’s father was invited to complete the consent form but did not attend the appointment and, given the history of family violence, she claims it would be inappropriate to insist on the father’s consent.

   Evidence before the Tribunal and consideration of claims

9. The review applicant provided a written submission and other evidence to the Tribunal on the morning of 5 October, a short time before her hearing was due to commence. As the applicant was represented on review, and the issues had been clearly identified in the primary decision, it is unclear to the Tribunal why the review applicant (or her representative) chose to provide evidence shortly before the hearing. The Tribunal finds such late submission of evidence and argument highly unhelpful. No explanation has been offered by the applicant’s representative for the non-compliance with the Tribunal’s Practice Directions. The review applicant was represented by Mr Rashpal Singh Chumber of Migration Matters Education and Migration Services.

10. The review applicant states that the visa applicant’s father abandoned the child at a rural mosque. The review applicant was able to find accommodation for the children until she was able to bring them to Australia. Despite many attempts, she was unable to locate the children’s father.

11. The review applicant refers to the Miscellaneous Amendments Act  which was passed in July 2020 which, she claims, permits women to travel abroad with their children. The review applicant claims the amendments have the effect of abolishing the previous laws, referring to a document by UNICEF, and that means that the law of the visa applicant’s home country permits his removal, as required by PIC 4017(a). The review applicant provided a letter from a lawyer in Sudan confirming the effect of the amendments as no longer requiring the father’s consent.

12. The review applicant submits, with respect to PIC 4017(b) that the child’s father has relinquished his paternal rights when he abandoned the visa applicant and the visa applicant is desperate to be reunited with his mother, who has worked hard in Australia to be able to care for the children. The review applicant states (by reference to other Tribunal decisions) that it is in the best interests of the visa applicant to be reunited with her in Australia and the review applicant describes the hardship caused by the separation. The review applicant outlines the effect that the refusal of the visa would have on her and the child. The Tribunal is mindful, however, that PIC 4017 is not concerned with the best interests of the child, nor does it permit the grant of the visa on compassionate grounds.

13. The Tribunal acknowledges the review applicant’s evidence that the father had abandoned the visa applicant but does not accept that this fact removed the father’s parental rights. That is, the Tribunal does not accept that the father’s lack of involvement in the child’s upbringing, or the claimed abandonment, would be sufficient to establish that the father has no right to determine where the child is to reside. The Tribunal also notes the review applicant’s evidence that if the father was to become aware of the child’s whereabouts in Egypt, he would forcefully bring the child to live with him. This seems to contradict the review applicant’s claim that the father has no interest in the visa applicant and has relinquished his parental responsibility. In the circumstances, and in the absence of any evidence that the child has been adopted, the Tribunal finds that the parent – child relationship continues to exist between the visa applicant and his father and that the father can lawfully determine where the applicant is to live.

14. The primary decision record indicates claimed consent of the father was found to be a bogus document. The review applicant denied in oral evidence that the document was a bogus document and claims that the lawyer was able to contact the father and prepared the document formally through a court process but the lawyer has lost contact with the father since. The Tribunal finds the review applicant’s explanation unconvincing and finds it unlikely that the father was located precisely at the time when his consent was required, signed the document and had then disappeared again. The Tribunal prefers the information in the primary decision which indicates that the father’s affidavit is a bogus document and ultimately the review applicant told the Tribunal that she could not be certain how the document was obtained. The Tribunal is not satisfied that the affidavit evidences the father’s consent and the Tribunal is not satisfied on the evidence before it that the father has given the requisite consent for the child’s migration.

15. The review applicant also states that that she has won the court case in Sudan and has full custody of the child. However, having custody does not necessarily permit the child’s migration. It is possible for one parent to have custody and the other parent to have access or other rights with respect to the child which may prevent the child’s migration. The Tribunal does not consider that the grant of the child’s custody to the review applicant is sufficient to establish that no other person (such as the child’s father) can determine where the child is to live. The Tribunal is not satisfied PIC 4017(b) is met.

16. There is no evidence before the Tribunal to indicate there is an Australian child order in force in relation to the visa applicant. The Tribunal is not satisfied PIC 4017(c) is met.

17. The review applicant is seeking to rely on PIC 4017(a) and claims that the recent amendments of the Sudanese laws allow the removal of the child without the consent of a male relative. The Tribunal has considered the statement from the local lawyer who claims that the recent legal amendments allow mothers to obtain passports for underage children without the consent of the father and to travel with the children outside of Sudan without father’s consent. If that is the case, the Tribunal considers that to be inadequate for the purpose of PIC 4017(c) which talks about the ‘removal’ of a child, rather than travel. That is, a child may travel to another country with a mother for a period of time. That is diffident to what is required here, which is a permanent migration to another country. In the Tribunal’s view, the term ‘removal’ implies much more than overseas travel to which the review applicant refers. It is an act of a permanent nature.

18. The review applicant subsequently provided additional court documents which, she claims, purport to allow the removal of the visa applicant. For the reasons that are no longer relevant to this review, the Tribunal had formed the view that the court document was not adequate to satisfy the Tribunal that the law of the visa applicant’s home country permits the removal of the applicant.

    Disposition

19. The visa applicant was born on 15 December 2003. He is, today, 18 years of age and the requirements of PIC 4017 and PIC 4018 no longer apply to the visa applicant.

20. The Tribunal finds that  the visa applicant meets cl. 101.226.

    Conclusion

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

    DECISION

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

    ·cl 101.226 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member