Thapa (Migration)

[2022] AATA 5270

Thapa (Migration) [2022] AATA 5270 (1 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Robin Thapa

VISA APPLICANT:  Master Reyaz Thapa

REPRESENTATIVE:  Mr Suraj Shrestha (MARN: 0962152)

CASE NUMBER:  2200628

HOME AFFAIRS REFERENCE(S):          CLF2020/63664

MEMBER:Jane Marquard

DATE:1 September 2022

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:

·Public Interest Criterion 4017 for the purposes of cl 101.226 of Schedule 2 to the Regulations.

Statement made on 01 September 2022 at 11:26am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – legal permission for child’s removal – Nepal – consents to the grant of visa – mother relinquished guardianship – Guardianship Verification Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 101.226; Schedule 4, PIC 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 12 November 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 14-year old child from Nepal. He applied for the visa on 11 September 2020. 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).

3. 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 applicant has not turned 18, Public Interest Criteria 4017 and 4018 are satisfied (PIC 4017 and 4018). A copy of the visa applicant’s passport shows that his date of birth was 16 January 2008. He was 12 years age at application and is currently 14 years old. He must therefore satisfy PIC 4017 and 4018.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   RELEVANT LAW

6. The issue in this case is whether at the time of decision, the applicant satisfies PIC 4017.  PIC 4017 requires that 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.

7. For the purposes of PIC 4017, ‘home country’ is defined in r.1.03 of the Regulations; relevant to this matter, it is the country of which the person is a citizen.

8. The question of who has the right to determine where the child shall live varies from country to country. Generally, the person with sole custody of the child will have this right. However, this may differ according to the jurisdiction. It will generally be decided by the local law of the country or state of which the child is a citizen or in which they usually reside, that is their ‘home country’ as defined in regulation 1.03.

9. To be able to meet para (a) of PIC 4017, the Tribunal must be satisfied that the local laws allow the parent to take the child to Australia either permanently or temporarily as applicable.

   DECISION OF THE DELEGATE OF THE DEPARTMENT

10. On the basis of the evidence before the Department, the delegate was not satisfied that PIC 4017 was met. The delegate noted that the applicant had not provided evidence such as a court order that the law of the visa applicant’s country permitted the removal of the applicant (in order to satisfy PIC 4017(a)). The delegate noted that a signed Statutory Declaration or Form 1229 from the visa applicant’s mother had not been provided such that it was not demonstrated that Bhim Bahadur Thapa and Nita Giri had been given lawful parental responsibility over the applicant, (in order to satisfy PIC 4017(b)). No evidence of an Australian child order had been provided (in order to satisfy PIC 4017(c)).

    DOES THE VISA APPLICANT MEET PIC 4017?

11. New evidence was provided to this Tribunal. The review applicant provided a notarised Guardianship Verification Certificate dated 24 May 2022 issued by Jhapa District Court, Nepal. It was stated on the Certificate that in accordance with a decision dated 24 May 2022 of the court, Robin Thapa is guardian of Reyaz Thapa, aged 14, son of Robin Thapa and Sona Thapa for the purpose of ‘support-maintenance, nourishment-nurture, education-teaching, health care-treatment, protection of right-entitlement, benefit-welfare’.

12. There is no evidence before this Tribunal that a Nepali court has made orders that permit the removal of the applicant from Nepal. The evidence before the Tribunal is that a Nepali court has made an order granting the applicant’s father guardianship of the applicant but not that it has made orders permitting removal. Accordingly, PIC 4017(a) is not met.

13. There is no evidence before the Tribunal that the grant of the visa would be consistent with any Australian child order in force in relation to the applicant. Accordingly, PIC 4017 (c) is not met.

14. The question therefore is whether the applicant meets PIC 4017(b). The visa applicant’s birth certificate and Nepali identification card have been provided, showing his mother as Sona Thapa and his father as Robin Thapa, the review applicant.

15. In the Form 40 CH ‘Sponsorship for a Child to Migrate’, lodged with the Department at Q18, the review applicant was asked if he has the sole legal right to determine where the applicant shall live or to permanently remove the applicant from their home country. The sponsor ticked ‘no’ and provided details of Bhim Bahadur Thapa and Nita Gira, the visa applicant’s ‘grandparents’. A signed statement from Robin Thapa was also provided, in which it was stated that the visa applicant’s mother, Sona Thapa, left the family in previous years and that the visa applicant was now living with Bhim Bahadur Thapa and Nita Giri (the visa applicant’s great uncle and aunt). He also stated that his aunt and uncle had cared for him as a child (which may explain why they were referred to earlier as the visa applicant’s grandparents).

16. The Department sent the review applicant a request for further information on 9 September 2021. On 26 September 2021 the review applicant provided a Form 1229, ‘Consent to grant an Australian visa to a child under the age of 18 years’, signed by him and the visa applicant’s stepmother, Karishma Adikhari, but not by his mother or his guardians, his great uncle and aunt.

17. The Department again requested information on 8 October 2021. On 26 October 2021 the review applicant provided a Form 1229 signed by him and a Relationship Verification Document issued by the Mechinigar Municipality Office in Nepal confirming the relationships between Nita Giri, Bahadur Thapa, Robin Thapa and Reyaz Thapa. He also provided a signed statement by Nita Giri and Bhim Bahadur Thapa stamped by a Notary Public declaring that they had been guardians of the applicant Reyaz Thapa since 2014, and that the guardianship was now relinquished with responsibility transferred to the father.

18. In new evidence provided to this Tribunal, a Form 1229 dated 21 March 2022, ‘Consent to grant an Australian visa to a child under the age of 18 years’ was signed not only by the visa applicant’s father but also the visa applicant’s mother, Sona Thapa. The form was accompanied by a citizenship certificate for Nepal for Sona Thapa.

19. On 30 August 2022 the review applicant made the following submission:

    ‘This is Robin Thapa, the father of Reyaz Thapa, case number 2200628, Migration and Refugee Division. Thank you so much for accepting my request for priority processing to review a decision to refuse to grant a child (Migration)(Class AH) visa. I am writing to express my anxiety about my son Reyaz Thapa who is in Nepal and living with my uncle and aunt.

    It has been more than two years since I applied for his visa and he is very stressed and crying every time he talks with me about not getting his visa granted. I am extremely anxious about my son because I am the only guardian and there is no one to look after him in Nepal. The uneasy and overly concerning thing for me is that he is at the peak stage of his teenage years where he needs proper guidance, care and a prosperous environment. He has stopped playing with his friends, doesn’t talk much with anyone and is just inside his room. I am distressed if he gets into a depression soon. My uncle and aunt are forcing me to take my son away because they don’t want any trouble. I haven’t had a good night sleep and can’t focus at work thinking about him since his visa got refused. I want him to be in this beautiful place, have a good education and make his future bright.

    Therefore, I would like to make a humble request and would be very thankful if you could look into my case as early as possible. I have already submitted all the documents. Thank you so much.

20. According to the Form 1229 ‘Sponsorship for a Child to migrate to Australia’, the child is a citizen of Nepal. The applicant’s mother resides in Nepal. The applicant’s father resides in Australia and is an Australian citizen (evidence provided). The evidence of the review applicant is that the child’s mother left the family some years prior and had relinquished guardianship to Bhim Bahadur Thapa and Nita Gira, the great aunt and uncle of the visa applicant. This was evidenced by a Relationship Verification Document issued by the Mechinigar Municipality Office in Nepal. However, in a Guardianship Verification Certificate dated 24 May 2022 issued by Jhapa District Court, Nepal it was confirmed that the applicant’s father now has full guardianship by order of the court. Guardianship involves full parental authority.[1] Both the applicant’s father and applicant’s mother have in March 2022 signed a Form 1229, consenting to the grant of an Australian visa for the visa applicant. The Form has been notarised and was accompanied by the visa applicant’s mother’s citizenship certificate.

    [1] Section 131, The National Civil (Code) Act, 2017 (2074), >

    The Tribunal is satisfied on the basis of this evidence that each person who can lawfully determine where the applicant is to live consents to the grant of the visa. Accordingly, PIC 4017(b) is met.

    CONCLUDING PARAGRAPH

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:

    ·Public Interest Criterion 4017 for the purposes of cl 101.226 of Schedule 2 to the Regulations.

    Jane Marquard
    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.

    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.

    …