Thav (Migration)

[2019] AATA 2112

Thav (Migration) [2019] AATA 2112 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thana Thav

CASE NUMBER:  1718649

DIBP REFERENCE(S):  CLF2017/45789 OSF2014/051114

PLACE OF DECISION:  Melbourne

DECISION:Given the reasons below, this Tribunal remits the visa application with the finding the applicant meets clause 100.221(a); and (b); and (c)(ii)(A).

DATE:12 February 2019

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – relationship with sponsor ceased – partner visa application can continue to be considered in limited circumstances – child of relationship – family violence – decision under review remitted

LEGISLATION
Child Support (Assessment) Act (Cth) 1989
Family Law Act (Cth) 1975
Migration Act 1958 (Cth), s 353
Migration Regulations 1994 (Cth), Schedule 2, cl 100.221

WRITTEN STATEMENT OF REASONS

The applicant has informed the Tribunal that her relationship with her sponsor has ended. In limited circumstances, the applicant’s partner visa application can continue to be considered for the grant of a permanent visa: where the sponsor has died; where there is a child of the relationship (or court order in relation to a child); or where the applicant has suffered family violence. In this case, the applicant claims she had a child the relationship, and she has suffered family violence. This Tribunal accepts the applicant had child which is now deceased. The documentary medical evidence supports such. This Tribunal is minded to accept the applicant’s claim where the parentage of the child is proven. In other words, in circumstances where the Tribunal is satisfied the child is of the relationship. A birth certificate is one form of evidence of claimed parentage, however, given this Tribunal is not bound by the Family Law Act, and given birth certificates are based on self-reporting, they are not, in this Tribunal’s view, a sufficiently reliable indicator of a child’s parentage. This said, where a child has deceased (particularly at a very young age), and in circumstances where the applicant is assessed by this Tribunal to have provided consistent, spontaneous, and therefore reliable and credible evidence, the Tribunal has an obligation to treat the applicant fairly. In other words, absent any inconsistencies in the applicant’s claims, any untruths, any embellishing, or any evidence that the applicant is in any way providing evidence that is unreliable or not credible, or at least needing further investigation (even if only minor), it is fair, just and economical for this Tribunal to make a favourable decision based on a claim of a child of the relationship which imports a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act 1975, and the sponsoring father’s formal maintenance obligation through the operation of the Child Support (Assessment) At 1989 . While the child is deceased, it is not for this Tribunal to import a ‘minimum age requirement’ which doesn’t exist in law. Even had the ‘child exception’ not been met, the applicant has now provided the necessary documentation for consideration of a claim of having suffered family violence (even though a further statutory declaration from the same psychologist for the purpose of Schedule 1 (IMMI 12/11) would further strengthen such a claim). In addition, this Tribunal notes the applicant is now in a relationship with a permanent resident of Australia (not her sponsor) and they are expecting their first child of their relationship in early March 2019. Evidence of the applicant’s current pregnancy, and of her (new) partner’s residency status, has been provided, and will be shared with the immigration department. In coming to the decision above, this Tribunal has acted “according to substantial justice and the merits of the case: s.353(2)(b).

Statement made on 12 February 2019 at 2:53pm