Singh (Migration)

[2021] AATA 182

Singh (Migration) [2021] AATA 182 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yukti Singh

VISA APPLICANT:  Ms Sanjolika Singh Chaudhary

CASE NUMBER:  1926128

HOME AFFAIRS REFERENCE(S):          M17/01230042 OSF2017/123004

MEMBER:Peter Vlahos

DATE:27January 2021

PLACE OF DECISION:  Melbourne

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

This Statement was made on 27 January 2021 at 7.00am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – consent of each person who can lawfully determine where child is to live – court order giving sponsor sole custody and right to take applicant to Australia – ex-husband/father’s consent to applicant’s adoption by sponsor’s new husband – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 101.211, 101.226, Schedule 4, criteria 4017(b), 4018

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 8 July 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 February 2017. 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). The delegate was not satisfied that each person who can lawfully determine where the visa applicant is to live consented to the grant of the visa. In particular, the delegate had concerns as to whether the biological father, Sachin Kumar had given his consent to the visa applicant’s migration to Australia.

3. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied that the visa applicant had not met cl. 101.226 in that the applicant had not turned 18 and that the public interest criteria 4017 and 4018 had not been satisfied. Therefore, the applicant failed (according to the delegate) to meet one or more of the clauses in Schedule 2 of the Regulations.

4. The review applicant appeared before the Tribunal on 17 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The review applicant was not represented in relation to the review by Legal Counsel or by a Registered Migration Agent.

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

   REVELANT LAW

7. At the time of visa application was lodged, the Child (Migrant)(Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative) in the Regulations.

8. The criteria for a Subclass 101 visa a set out in Part 101 of Schedule 2 to the Regulations.[1] The visa applicant must satisfy certain criteria at the time of application and the time of decision. The primary criteria require that at the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen: cl. 101.211(a).

   [1] Item 1108 of Schedule 1 to the Regulations.

9. The primary criteria to be satisfied at the time of decision includes a requirement that:

   ·if the visa applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the visa applicant: cl. 101.226

10. Public interest criterion 4017 states as follows:

    4017

    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.

11. The issue in the present case is whether public interest criterion 4017 is satisfied in relation to the visa applicant.

    FINDINGS AND REASONS

12. The visa application was made on the basis that the visa applicant is the dependent child of the review applicant, who is the visa applicant’s mother. The review applicant contended that the visa application complied with 4017(b) or 4017(a). The Tribunal considered each of these contentions.

    Each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

13. The review applicant contends that cl. 4017 is met in this case. Firstly, Ms Yukti Singh contends that she has sole custody of the child under an order made by an Indian court on 31 August 2019, she also states that she has had the absolute right to take care of and educate the child. She also contends that the welfare of the child and concern for the child had been abandoned by the child’s biological father who she divorced on 22 May 2013. Since her divorce from her husband, Ms Singh has the care and welfare of the child. The biological father having expressed on willingness whatsoever to assist the child with her personal needs or education. Secondly, the review applicant contends that she is the biological parent and that her new husband, the adoptive father of the child (as recognised by Indian law) and they can determine where the child resides and they both consent to the grant of the visa.

14. The applicant submitted a copy (certified) of the Court of the Principal Judge, Family Court, GAUTAMBUDH NAGAR which determined by an ‘Order’ that the child’s biological mother, the review applicant was declared the child’s ‘guardian’ and ‘granted’ the applicant the ‘right’ to take the child (Kumari Sajolika Singh Chaudhary) ‘with her permanently to Australia…beyond the territorial jurisdiction of India’. The order was signed and dated by the Court bearing the date 31 August 2019. A copy of Court Order was also submitted to the Tribunal in the Hindi language.[2]

    [2] see AAT File.

15. The applicant also told the Tribunal that prior to these proceedings having been file in Court, she had on numerous occasions tried to communicate her intentions to take the child with her to Australia – with her former husband but was unable to converse with because of his unstable living habits and lack of permanent place of abode. The courts were the review applicant’s only avenue. In the meantime, while she was trying to settle the future of her child, the applicant told the Tribunal that while she was in Australia, her parents – the child’s grandparents undertook the responsibility for the child’s daily needs, while the review applicant provide financial assistance to her for those needs and looked after her needs at school. Further, having divorced her husband in 2013, the review applicant re-married in September 2013. Since that date, the child (who is 17-years-of-age) has been solely reliant on her mother and her husband’s assistance. This assistance has been provided without any interruption and has been further enhanced by frequent visits by the review applicant and her husband to India to see the child and when not with child in India, the two – as responsible parents have provided constant contact with their daughter – enquiring as to her progress academically and addressing any of their daughter’s needs or requests.

16. The review applicant and her husband also submitted to the Tribunal for its consideration an Adoption Deed duly executed on 26 February 2012.[3] The deed in question acknowledges the marriage of the review applicant and her current husband and also acknowledges that the review applicant had legally been separated and divorced from her first husband and biological father to the child (the Decree was dated 22 May 2013). The deed also acknowledges that the review applicant ‘re-married’ to Shri Aakash Chaudhary on 16 September 2013. The deed further acknowledges that ‘both parties’ (the review applicant and her former husband) were ‘in full agreement for offering the adoption and for accepting the adoption of Kumari Sajolika Singh (the child). The review applicant’s first husband is then recorded by the Court as ‘willingly and happily, with clear understanding of mind, [as] agreed for the adoption of Kumari Singh with full and complete concurrence of the First Party (the review applicant’s former husband and biological father of the child in question).’ The Court then records that the child (Kumari Singh) was adopted by the review applicant’s current husband on 15 October 2013 ‘as per the customs and procedure prevalent in the Hindu Religion.’ The deed was formerly ‘executed’ on 26 October 2016 and was deemed ‘registered’ on the same day.

    [3] see AAT File.

17. The discussion the Tribunal had with the child’s adopted father – her ‘stepfather’ so to speak, the Tribunal found him to be a caring parent and an individual that was motivated from a deep sense of doing what was in the welfare of the child. He consciously supported his wife in her effort to provide the best for their daughter and he on his part had done everything that he could do to ‘bond well’ with his adopted daughter. As stated earlier in this decision, his efforts have always been forthcoming for the welfare of the child from the beginning of his marriage to Ms Singh. The Tribunal accepts the evidence before it that the child’s welfare is well served by her mother and her step-father and has considers, accepts and finds the Adoption Deed submitted as such, is a true testimonial that the child’s best interest are well served as if they had been consider by court in Australia. Moreover, the documents do not in anyway record dissent on the part of the child’s biological father.

18. Further, the Tribunal noted that in delegate’s opinion it was recorded that the ‘…the Department had requested evidence on 10 January 2018, 26 February 2018 and 5 April 2018. On 23 April 2018, the applicant has provided evidence that a petition had been filed under the Guardians and Ward Act 1890 to seek permission to remove the applicant from the country of usual residence (India)…’ The delegate went on to record, ‘…to date, the Department has not received any court order in respect to the custody and permission to remove the applicant from India.’[4] Hence, the delegate was ‘not satisfied’ that the applicant’s natural father [had] consented to grant an Australian visa to the applicant’ and found ‘that sub-criterion (a) and (b) of PIC 4017 had not been met.’ The evidence provided by the review applicant and husband emanating from the Indian courts satisfies the Tribunal that that ‘consent’ as recorded in the orders and a deed (the Tribunal has sighted and considered) satisfy the requirements of the (a) and (b) of PIC 4017.

    [4] see Department’s decision record on File dated 8 July 2019.

19. The Tribunal finds that based on the evidence submitted by all parties to it at the hearing and also taking into account all documents provided to the Department (which includes a certified birth certificate for the child) that Ms Singh is the biological mother of the applicant child and also after having read and considered the Court pronouncements and determinations concerning the Adoption Deed that Ms Singh’s current husband is the step-father and adoptive parent of the Child. His position and responsibilities for the child in question are total and complete and would be the same as one would have expected if they had been granted to him by court in an Australian jurisdiction. Further the Tribunal finds that the review applicant as the sponsor for the visa for the visa applicant consents to the grant of a visa to her to live in Australia.

20. Based on the oral and documentary evidence, particularly the court orders and Adoption Deed dated 26 October 2016 coupled with evidence of the parties before the Tribunal, the Tribunal is also satisfied that Ms Singh’s former husband consents to the grant of the visa to visa applicant.

21. Therefore, the Tribunal is satisfied that each person who can lawfully determine where the applicant is to live consents to the grant of the visa, as required by PIC 4017(b). Therefore, the Tribunal is satisfied that the requirement of PIC 4017 is met.

    Public Interest Criterion 4018

22. Cl.101.226 also requires that public interest criterion 4018 is satisfied in relation to the applicant. Public Interest Criterion 4018 states:

    The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interest of the applicant.

23. There is no information before the Tribunal that demonstrates that there is any compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant. Therefore, the Tribunal is satisfied that the requirement in public interest criterion 4018 is met.

    CONCLUSIONS

24. For the reasons provided above, the Tribunal finds the visa applicant satisfies the requirements of 101.226

    DECISION

25. 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

    Peter Vlahos
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or stepchild 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.

    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.

    …