Pan (Migration)

[2019] AATA 2499

Pan (Migration) [2019] AATA 2499 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shutong Pan

CASE NUMBER:  1613891

HOME AFFAIRS REFERENCE(S):           CLF2016/25633

MEMBER:Kira Raif

DATE:19 February 2019

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:

·Item 4017 for the purpose of cl.802.225 of Schedule 2 to the Regulations.

Statement made on 19 February 2019 at 7:42am

CATCHWORDS

MIGRATION – Child ­(Residence) (Class BT) – Subclass 802 (Child) – delegate was not satisfied the child’s father gave consent – delegate considered document inadequate – contacted father to confirm consent – delegate not satisfied person who answered was the child’s father – DNA testing – not the biological father – consent is not sufficient – law of applicant’s home country permits the removal of the applicant – advice from the overseas post that the document was genuine – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 item 4017, cl 802.225

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 Immigration and Border Protection on 25 August 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in June 2015. The applicant applied for the visa on 21 April 2016. The delegate refused to grant the visa on the basis that cl.802.225 was not met because the delegate was not satisfied the child’s father gave consent for the child’s migration, for the purpose of Item 4017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 November 2018 to give evidence and present arguments. The child’s mother gave evidence on behalf of the visa applicant. The 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 (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 (the Regulations).

5. The issue in the present case is whether the applicant meets Item 4017. It 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 applicant meet Item 4017?

6. According to the primary decision record, a copy of which the applicant presented to the Tribunal, the applicant provided with the application form 1229, consent to the child’s migration, signed by the child’s father, Mr Liu. As the delegate considered the document inadequate, since it referred to the temporary visa and not permanent migration, an officer of the Australian embassy contacted the father to confirm the consent. The primary decision indicates that the father was unable to state his identification number, the name of the child’s mother, the name of the applicant or the applicant’s date or birth. The delegate was not satisfied the person who answered the call was the child’s father. The sponsor subsequently wrote to the delegate stating that the father was drunk when speaking to the Immigration staff.

7. The Tribunal invited the parties to undertake DNA testing to confirm the father’s paternity. On 18 September 2018 the Tribunal received the DNA results excluding Jun Feng Liu from being the father of the visa applicant. This information was provided to the applicant pursuant to s. 359A of the Act. In her response to the Tribunal’s letter, the child’s mother Ms Wei Hua Pan stated that she had another affair before she started living with Mr Liu. When she found out she was pregnant, she married Mr Liu. Their relationship later deteriorated and they divorced and she moved to Australia. She believed Mr Liu to be the biological father and ‘almost forgot’ the one night affair.  In oral evidence Ms Pan confirmed that she did not know until the DNA test that Mr Liu was not the father.

8. The Tribunal acknowledges Ms Pan’s evidence, however, having regard to the results of the paternity test, the Tribunal finds that Mr Liu is not the biological father of the child. The Tribunal is not satisfied he can lawfully determine where the visa applicant is to live and therefore his consent is not sufficient for the purpose of Item 4017(b). The Tribunal Is not satisfied the visa applicant meets Item 4017(b).

9. There is no evidence that there are any Australian child orders in force in relation to the applicant and the Tribunal is not satisfied that the grant of the visa would be consistent with any such order.

10. Ms Pan subsequently provided to the Tribunal a notarised court order from China dissolving guardianship arrangements between Mr Liu and the child and stating that Ms Pan, as the sole guardian, can determine where the child is to live. On 19 February 2019 the Tribunal received advice from the overseas post that the document was genuine.

11. Having regard to the court order, the Tribunal finds that the law of the applicant’s home country permits the removal of the applicant. The Tribunal finds that the applicant meets Item 4017(a) and Item 4017 for the purpose of cl. 802.225.

    Conclusion

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

    DECISION

13. 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:

    ·Item 4017 for the purpose of cl.802.225 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member