Xie (Migration)

[2021] AATA 1775

Xie (Migration) [2021] AATA 1775 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yunzhi Xie

CASE NUMBER:  1704018

HOME AFFAIRS REFERENCE(S):          CLF2016/49361

MEMBER:Brendan Darcy

DATE:06 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 06 May 2021 at 1:55pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – local law permission for child’s removal – 16th Article of the Civil Code of People’s Republic China – rights of minors’ guardianship after divorce – commercial surrogacy arrangement – consent of biological mother required – best interest of the applicant – child’s emotional and psychological wellbeing – child’s young and impressionable age – father’s single status – adverse emotional impact of long-term separation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 802.225; Schedule 4, PIC 4017, 4018

CASES
Re Drake and Minister for Immigration and Ethic Affairs (No 2) (1979) 2 ALD 634

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 17 February 2017 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 applied for the visa on 18 August 2016. 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).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.225:

   If the applicant has not turned 18, Public Interest Criteria (PIC) 4017 and 4018 are satisfied in relation to the applicant.

4. The applicant was born in September 2015. He has not turned 18 and therefore he must meet PIC 4017 in order to meet the cl.802.225 requirement to be granted a Child visa.

5. The delegate refused to grant the visa on the basis that cl.802.225 was not met, because the application failed to satisfy PIC 4017 (a), (b) or (c) based on the available evidence.   

6. The review applicant (or the applicant) did not appear before the Tribunal on 2 September 2020 to give evidence and present arguments. As she was a young minor, the Tribunal received oral evidence from the applicant’s behalf from her biological father and sponsor, Mr Hongjun Xie, and from the applicant’s biological mother residing in China, Ms Xiaomen Chen (‘the applicant’s biological mother or the applicant’s mother’).

7. The hearing was conducted via an internet enabled audio-visual platform (MS Teams). The applicant and other parties were represented by in relation to the review, although the representative did not attend the hearing.  

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF EVIDENCE

9. The issue in the present case is whether cl.802.225 is met or not by satisfying PIC 4017 (a), (b) or (c) based on the available evidence.

10. PIC 4017 states:

    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. PIC 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 interests of the applicant.

12. 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.

13. 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.

14. To be able to meet part (a) of PIC 4017, the Tribunal must be satisfied that the local laws allow the parent (that is, the main applicant or the family head or sponsor) to take the child to Australia either permanently or temporarily, as applicable.

15. In Re Drake and Minister for Immigration and Ethic Affairs (No 2) (1979) 2 ALD 634 Brennan J concludes that decision makers charged with the responsibility of undertaking merits reviews should generally apply ministerial policy unless the policy was unlawful or ‘there are cogent reasons to the contrary”. Whilst not bound to apply the policy, the Tribunal has chosen to do so and the evidence provided is not consistent with the ‘requirements’ as set out in the policy in respect of PIC 4017 (parental responsibility) for minor children [Policy Migration Act-defined terms instructions-s5G-s5G-Relationships and family members-Custody (parental responsibility) for minor children - 18 Consent of all relevant persons - 18.1 Requirements; 18.2 Assessing and evidence; 18.3 if evidence is unavailable or one parent cannot be contacted).

    Background

16. The review applicant, born March 2013 in China, applied for a Child visa on 18 August 2016, on the basis of being a dependent child of the sponsor.  The applicant was onshore in Australia at the time of application while holding a visitor visa. At the time of making this decision, the applicant was a minor living offshore in the People’s Republic of China (China).

17. The sponsor is a citizen of China and a permanent resident of Australia, having been granted a permanent State or Territory Sponsored Business Owner visa (Subclass 982) as a dependent on 5 November 2014. The sponsor is currently the holder of a Resident Return (Subclass 155) visa, granted 18 November 2019, enabling him to re-enter Australia as a permanent resident.

18. The applicant’s mother, born 1981 in Hubei Province, China, is a citizen of China and currently residing in her hometown.

19. A number of supporting documents were lodged along with the visa application on 18 August 2016, including:

    ·The applicant’s birth certificate, identifying her parents as Xiaomen Chen (mother) and Hongjun Xie (father).

    ·A statutory declaration, declared by the applicant’s mother on 22 July 2015 at the Australian Consulate General, Shanghai, stating “I agree that my daughter, Yunzhi Xie goes to live with her father in Australia.”

    ·A copy of the applicant’s mother’s passport.

    ·A declaration made by the applicant’s mother, dated 11 June 2015, declaring she and the sponsor are the parents of the applicant, that she agrees for the applicant to go to Australia and live there with her father, and that meanwhile the applicant’s father shall execute the guardianship over the applicant while in Australia.

    ·A statement from the sponsor dated 30 May 2016, detailing the circumstances of the applicant’s birth and declaring he was not aware the applicant’s existence until 2015. He advised the applicant’s mother was not willing to raise the applicant alone.

20. On 18 January 2017, the Department wrote to the applicant, noting that she provided a statutory declaration signed by her mother on 22 July 2015, declaring she agrees to her living in Australia with her father, but that Departmental information indicates her mother no longer agrees to her living in Australia with her father. The letter noted that, as her mother can legally determine where she lives, and she no longer agrees to the granting of a permanent visa for the applicant, that she may not meet the parental responsibility (custody) requirement for the visa. The applicant was invited to comment on this adverse information and to provide any additional evidence of her mother’s consent or that her sponsor holds a valid court order permitting the applicant’s removal from her home country.

21. On 13 February 2017, the Department received a letter from the sponsor, who advised:

    Having my daughter Xie Yunxhi with Chen Xiaoman was unexpected. Due to incompetence, Chen Xiaoman gave up her custody and I, the biological father Xie Hongjun started raising Xie Yunzhi. Also, with Chen Xiaoman’s consent, Xie Hungjun started applying for immigration to Australia for Xie Yunzhi. During this process, Chen Xiaoman proposed a series of unreasonable demands using the excuse that the biological mother must sign (certain documents). For the sake of my child’s physical and mental state, we agreed to some of her demands. However Chen Xiaoman ate her words and went back and forth again and again, demanding increased economic compensation, the final amount reaching an unacceptable level. Moreover, she did serious personal harassment to the concerned parties. In desperation, we have no alternative to take my child to Australia with us. We sincerely hope that the impartial Australian government can grant Xie Yunzhi with a legitimate identity, so that my child can grow up safe and sound on this pure land in Australia.

22. On 17 February 2017, a delegate on behalf of the Minister refused to grant the visa. According to the decision record, based on the available evidence, the delegate was not satisfied the applicant met any one of the sub-clauses in PIC 4017.

    Evidence before the Tribunal

23. On 7 March 2017, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. The delegate’s decision was attached to this application for review.

24. On 15 August 2017, the applicant’s representative provided the Tribunal with the following documents:

    ·Department Form 1229, ‘Consent to grant an Australian visa to a child under the age of 18 years’, signed and dated by the applicant’s mother on 6 July 2016 and by the sponsor on 12 July 2017;

    ·A copy of the applicant’s mother’s passport; and

    ·A statutory declaration, declared by the applicant’s mother on 6 July 2017 at the Australian Consulate General, Shanghai, stating “I agree that my daughter, Yunzhi Xie, goes to live with her father in Australia.”

25. On 31 July 2020, the Tribunal wrote to the applicant under the Act’s s.359(2) provisions, inviting her to provide further updated information that the parental responsibility (custody) requirement is met for the visa and information regarding whether there are no compelling reasons to believe that the grant of the visa would not be in the best interests of the visa applicant.

26. On 12 August 2020, the applicant’s representative responded to the invitation, advising that the applicant’s mother now agrees to the applicant migrating to Australia with the sponsor and attaching a copy of the applicant’s mother’s passport and a statutory declaration. The statutory declaration was declared by the applicant’s mother on 11 August 2020 at the Australian Consulate General, Shanghai, stating “I agree that my daughter, Yunzhi Xie goes to live with her father in Australia.”

27. On 2 September 2020, the applicant’s sponsor and her biological mother appeared before the Tribunal via a teleconference facility to provide evidence and to present arguments on behalf of the applicant. They were assisted by an interpreter in the English and Mandarin languages. The applicant’s representative did not attend the hearing.

    Non-disclosure certificate

28. A non-disclosure certificate was issued under s.376 of the Act and attached to the applicant’s departmental file (CLF2017/49361).

29. The information that was supposed to be subjected to the Act’s non-disclosure included allegations made by the applicant’s mother withdrew her parental permission for the applicant to depart China. The information pertained to folios 132-144 and 147.  This information had been outlined in a letter by the department dated 18 January 2017 which the sponsor responded to on 13 February 2017.

30. The delegate’s refusal decision reiterated the allegations and the sponsor’s response on behalf of the applicant. Given the earlier disclosures of the same information that was invalidly subject to a non-disclosure certificate, the Tribunal is satisfied information was not be considered adverse information to be subjected. The non-disclosure certificate was neither signed nor dated. As explained in the scheduled hearing, the Tribunal assessed the certificate to be invalidly issued.

    Post hearing submission

31. At the end of the hearing, the applicant’s parents were provided with an opportunity to submit a post hearing submission by 16 September 2020. When the representative requested an extension of time for the submission by fourteen days, the Tribunal granted an extension up to and including 22 September 2020.

32. On 21 September 2020, the applicant’s parents submitted the following via the applicant’s representative:

    ·A copy of a statement in Chinese by the applicant’s father with an accompanying translation;

    ·A copy of a statement in Chines by the applicant’s mother with an accompanying translation;

    ·A copy of a marriage certificate between the applicant’s mother and a third person indicating their marriage was registered on 30 June 2020; and

    ·A copy of an original household registration (hukou) dated 7 April 2016 with an accompanying translation indicating the father of the applicant and the applicant shared the same household at the same address.

    CLAIMS AND FINDINGS

    Public interest criteria 4017

33. In considering PIC 4017, the he Tribunal notes that there is no provision to waive PIC 4017, even in compelling circumstances. The intention of PIC 4017 is to ensure that the laws of the child's home country are abided by, except where 4017(c) is satisfied by an Australian Court Order.

34. The department was given advice by People’s Court of the People’s Republic of China on 18 November 2006 relating to whether a parent who has custody of a child can migrate to Australia with the child without the consent of the other parent. This information was confirmed and clarified on 06 November 2012. The Supreme People’s Court of the People’s Republic of China advised that:

    After consideration by relevant departments, the Supreme People’s Court of the People’s Republic of China holds the following opinions: the 16th Article of the Civil Code of P. R. China stipulates that minors’ parents are minors’ guardians. In China, both father and mother enjoy the rights of minors’ guardianship after divorce, while the way of raising children can differ. The one living with the children is to rear the children direct. While the one providing children support payment is to rear the children indirect. The 21st Articles of Suggestions on Certain Problems Concerning the Implementation of the Civil Code of P. R. China (Tentative) provides that after divorce, the one living with the children has no rights to cancel the other one’s guardianship to the children. However, the article does not apply to the situation when the People’s Court may consider cancelling the guardianship of the parent who is not living with the children due to his/her criminal behaviour, child abuse or unfavourable circumstances to the children. Therefore, any divorced parent wishing to bring his/her children under 18 years old to go to Australia should seek for consent from the other parent unless the other one has been cancelled the guardianship to the children by the People’s Court.

35. In summary, if one parent intends to take the child abroad alone, he/she should provide a written consent of the other parent who is not directly involved in rearing the child or they should provide evidence of the People’s Court verdict regarding revocation of the guardianship, or the evidence of civil court verdict of declaration of missing, death, or loss of capability of civil conduct.

36. With no evidence to the contrary, the submitted DNA test results categorically and credibly support that the sponsor is the biological father of the applicant and that Ms Xiaoman Chen is the applicant’s biological mother.

37. Written statements submitted to the Department outlined that the conception of the applicant occurred unintendedly and unexpectedly though an extramarital liaison.

38. During the course of the scheduled hearing, the sponsor however provided additional evidence that undermined the oral evidence that the applicant was a product of an adulterous affair with the applicant’s mother.  The sponsor explained that he and his then wife wanted to have a child of their own, even though his wife had children from a previous marriage. The sponsor said that his wife could not naturally conceive, and they had unsuccessfully undertaken artificial reproduction technologies in order to have a child of their own. The sponsor claimed his wife was open to the sponsor fathering a child outside the marriage. Although the sponsor was adamant that his sexual relationship with the applicant’s mother was not a deliberate surrogacy arrangement, he did not admit to providing costs to the applicant’s mother during the pregnancy, right up to and after the birth.  

39. While the 2016 hukou indicates that that the applicant was registered to the same address as the applicant’s father, the Tribunal finds that this registration did not equate to the applicant actually residing in the same residence as the applicant and his now divorced spouse. In fact, since the applicant’s birth, it had been claimed by both her parents that the applicant has lived with her biological mother on a more or less continuous basis in a separate residence from the applicant’s mother. 

40. Despite the refusal of the applicant’s parents to admit the nature of their relationship, the inconsistencies in the oral and written evidence considerably undermined the claim that the applicant was not a product of a commercial surrogacy arrangement between her parents. The denial appears to be in part out of sense of shame given surrogacy for remuneration is unlawful in China.

41. Based on its assessment of the available evidence, the Tribunal finds that the applicant’s biological parent knowingly entered into an arrangement whereby the applicant’s father paid the applicant’s mother to conceive and gestate the applicant as the father’s biological child until her birth.

42. The law in China about the guardian rights and custody arrangements with regards to surrogate children does not have the same familiarity or clarity as it does under Australian family and migration law. As discussed in the hearing, the general status of surrogacy arrangements, commercial or otherwise, in China is understood to be unlawful, although the law is not entirely clear. While surrogacy is understood widely to be unlawfully it is also extensively tolerated, as there is a massive underground surrogacy market in the country. According to Chinese law, biological parents have guardianship rights, regardless of custody arrangements, unless a parent's guardianship rights have been cancelled by the court. Indeed there is a strong emphasis in China’s Marriage Law that the biological parent who does not have sole care and control of an illegitimate child should pay the living and education expenses for the child until the child becomes financially independent. [1] 

    [1] Surrogacy litigation in China and beyond, By Chunyan Ding, Journal of Law and the Biosciences, February 2015, 10.1093/jlb/lsu036 & >

    There is no evidence to suggest that the applicant's biological mother's legal guardianship rights of the applicant have been cancelled by a Chinese court, or that the biological parents of the applicant have sought court approval to provide such rights to the sponsor that would satisfy PIC 4017(a).

1. As the parties has not provided any evidence the law of the visa applicant’s home country permits the removal of the applicant. Therefore, the Tribunal finds that the visa applicant does not meet this sub-clause.

2. Neither is there any suggestion or evidence that there is a current Australian child order in force. In this regard the Tribunal is not satisfied meets paragraph (c) does not apply

3. However, assessing PIC 4017(b) has been less straightforward.

4. At the time of the delegate’s decision, there was credible evidence that the applicant’s mother had withdrawn her earlier support for the applicant to travel to Australia with the sponsor. Subsequently, the applicant’s mother has subsequently provided two statutory declarations witnessed by Australian consular officials in China indicating that she does give her approval.

5. The issue of surrogacy remains relevant. The custody and parental responsibilities towards the child is not subject to any court order because the child is not a product of marriage. There is no suggestion in this matter that the child was formally adopted by the applicant’s father and his then wife at the time of application. Chinese law, as discussed above, attached parental responsibility to the biological parents. Regardless of the ambiguous laws towards surrogacy, commercial or otherwise, it is for the biological parents to settle on suitable arrangements for their biological children.

6. With regard to the applicant’s mother withdrawing support for the sponsor to depart Australia with the applicant in January 2017, the oral evidence at the Tribunal supports that a dispute about the degree of care and costs the sponsor was going to provide the applicant and not because she wanted sole custody of the child. Accordingly, it places little weight on it in the light of more recent evidence.

7. With particular emphasis on the most recent statutory declaration and based on the recent oral and written evidence that the applicant’s mother provides her permission for the applicant to depart China for Australia with her biological father, the Tribunal is accordingly satisfied the visa applicant’s mother consents to the grant of the visa.

8. It follows from this finding that the Tribunal is satisfied that the applicant meets paragraph (b) of PIC 4017.

9. As the applicant meets one of the subclauses to Public interest criteria 4017, the Tribunal find that the visa applicant has met Public interest criteria 4017 at the time of decision.

   Public interest criteria 4018

10. As discussed in the hearing, having satisfied PIC 4017, it is open to the Tribunal to consider PIC 4018: no compelling reasons to believe that the grant of the visa would not be in the best interests of the applicant.

11. During the scheduled hearing, the applicant’s parents raised a number of reasons relating to the grant of the visa being in the best interest of the applicant.

12. The applicant’s mother argued that there are a number of educational and environmental reasons as the reasons why Australia was preferable to China for the applicant’s development. These arguments included that Australia’s environment was cleaner and that its education encouraged innovation; and that the applicant could learn English rapidly to a fluent standard.  The applicant’s mother also said that the adverse impact of long-term separation between the applicant and herself would be overcome by regular temporary visits to Australia and frequent contact through video communication through online platforms.

13. The applicant’s father outlined that he would provide for the applicant where she will reside with him while he worked on a full-time basis. Given the young age of the applicant, his marital status as divorced and single and the nature of his work that included international travel, the Tribunal enquired into how he would ensure school attendance and adequate supervision. As he was unable to answer this adequately, the Tribunal expressed its concerns about the wellbeing of the applicant, if this visa were to be granted, and provided the applicant’s parents an opportunity to provide statements and any other information to augment their arguments, with particular emphasis on addressing PIC 2018.

14. As mentioned above, the applicant’s parents duly responded.

15. In the sponsor’s signed statement dated 17 September 2020, he stated Australia offers his daughter of good future and living environment and that she will reside with him in a property in metropolitan Melbourne and receive a quality education. He also stated that he has been doing business in China for many years and his income is stable. While in Australia with the applicant, the sponsor anticipates that he will be work from home via the internet. In addition, he plans to apply for a private boarding school for this daughter so that she can live at school on school days and live at home on weekends and during holidays. In this way, the sponsor further anticipates, it will not affect his care for the applicant’s life and study. The Tribunal also notes that the applicant’s mother is married and will have more of her children with new husband in the future.

16. In the statement signed by the applicant’s mother on 18 September 2020, she claimed Australian and overseas education encouraged innovation and new ideas; that there was less emphasis on indoctrination and that education in foreign counties are “pay attention to comprehensive for all-around development, especially the cultivation of individuals’ personality traits” and that she wanted a more flexible style of education for her child by residing in Australia with her father. The applicant’s mother also stated that she had forgotten to disclose that she was had remarried with another man to establish her own family and that “it is not very convenient for Yunzhi Xie to with my current family”.  She also states that if her own circumstances allow and my current family agree, she can apply for a family visitor visa to Australia to visit her daughter for short periods and that she is able to communicate through internet video calls when needed so, she still feel her lover for her daughter.

17. The Tribunal also considered the foreseeable consequences that the applicant will not be reside with the applicant’s mother in China no matter the visa outcome. There is no suggestion that the applicant’s mother residing in China is a person of concern. In fact, the applicant’s mother has a been a diligent and nurturing mother.  The Tribunal found it unconvincing that the applicant would not be adversely or negatively affected if she were to reside in Australia.

18. The Tribunal accepts the applicant’s mother is recently married as claimed. The mother of the applicant may consider raising the applicant while developing and building a family with her new husband to unconventional, difficult or challenging and without widespread social recognition. However, it is not necessarily onerous or detrimental to her marriage given the support the applicant receives from her biological father.

19. There is no information before the Tribunal that the applicant’s sponsor is a ‘sponsor of concern’ with any strong and obvious information he has a criminal record or suspected of abuse, sexual or otherwise, or of the trafficking of persons or that it will occur in the future. The Tribunal does not altogether the discount the preference of the applicant’s biological father for his daughter to reside with him in Australia in the circumstances whereby the child’s biological mother had been a surrogate for the father and his then wife at the time of applicant. He is, after all, the applicant’s father who has demonstrated he genuinely cares for her.

20. However, the circumstances in this matter were complicated by the applicant’s young and impressionable age, her father’s single status and the pedagogical arrangements as they were presented to the Tribunal.

21. PIC 4018 invites the Tribunal to assess whether the granting of the visa is the optimal option for the applicant. The Tribunal provided the applicant’s biological parents ample opportunity to present these foreseeable arrangements. The Tribunal is willing to accept that the applicant may benefit from an education in Australia and that the physical environment in Australia is generally less polluted than in China. However, young children require a nurturing environment in order to grow into well-adjusted, psychologically balanced individuals equipped for formal education to be effective. Without it, a child may be seriously disadvantaged regardless of the relative differences in Australia’s physical environment or the quality of tis schooling or the gaining of English language capacity, if the visa were to be granted. .

22. The Tribunal assess that there is a compelling reason the applicant’s emotional and psychological wellbeing is not best served by residing in Australia with one parent (and no step-parent at the time of decision as there was at the time of application) who cannot provide or is unwilling consistent supervision. The suggestion that an Australian boarding school is a suitable or better alternative for applicant at a young age in a country whose language and customs are unfamiliar to the applicant, has not been persuasive. Had the applicant been at an older age or that the applicant’s father had a supportive and nurturing partner or spouse or even relative residing with him in Australia, the Tribunal may have assessed differently in the matter. However, that is not the evidence the applicant’s parent have presented to the Tribunal to consider in this matter. Furthermore, the suggestion that the applicant’s mother will be able to visit Australia on regular basis, when there is no guarantee of such temporary visas being granted does not amount to suitably addressing the adverse emotional impact of long-term separation. Neither does the Tribunal accept that frequent online communication between the applicant and her mother will adequately address the concerns raised with the parents by the Tribunal.  

23. Prolonged periods of separation between young minors and their parents can cause problems for the development of children’s brains, lead to long-term behavioural consequences, disrupt the capacity of children to regulate emotions and cope with future stress. It may also be detrimental to learning. That is not to say that boarding schools cannot be developmentally and educationally positive or even enriching.  Nonetheless, by the applicant’s father undertaking to educate and nurture his daughter in an Australian boarding school at such the impressionable age of six or seven with her mother in China would be effectively separating the applicant, a vulnerable minor, from both parents for a prolong period of time.

24. The Tribunal does not accept the current husband of the applicant’s mother rejects the applicant or is detrimental to the applicant. Obviously, the relationship between the applicant’s mother and her husband has developed and flourished while the applicant resided with her mother. Even the language employed by the applicant’s mother is not one of rejection or detrimental to the development of the child. Instead the applicant’s mother wrote of the applicant’s ongoing residency in China as ‘not very convenient’. There is no suggestion the mother does not want to be an ongoing nurturer of the applicant by proposing to visit Australia and/or to contact each of other via telephony and the internet on a regular basis. The Tribunal does not accept the marriage of the applicant’s mother poses any detrimental impact on the applicant’s development, compared to the likelihood of negative impacts posed the proposed and insufficient pedagogical approach presented to the Tribunal by both the applicant’s biological parents on the applicant’s behalf, should this visa be granted.  Indeed, the Tribunal finds that these proposed arrangements can be reasonably and compellingly characterised as neglectful and detrimental relative to the circumstances if visa were not to be granted.

25. If this visa in not granted, the Tribunal assuredly assesses that the applicant will continue enjoy the prolonged and nurturing parental support and supervision of her mother and the ongoing but indirect support of her biological father. When this is juxtaposed to the pedagogical approach the applicant’s parents have presented to the Tribunal if this visa were to be granted, it assesses the approach to be detrimental and unfavourable to the better interest of the applicant’s emotional, educational and psychological development.

26. Based on the available evidence and a fair evaluation of that evidence, there are compelling reasons to believe that the grant of the visa would not be in the best interests of the applicant, as required by PIC 4018(b).

27. Given that the Tribunal is not satisfied that Public interest criteria 4018 has been met, the Tribunal is therefore not satisfied that clause 802.225 of Schedule 2 of the Regulations has been met.

28. Accordingly, cl.802.225 is not met.

29. In making this decision, the Tribunal does not discount the possibility that the applicant and her familial circumstances in the future could relevantly alter. In those circumstances, it may be open to the applicant’s sponsor to re-apply for this visa category or its offshore counterpart (Class AH Subclass 101) in the reasonably foreseeable future.

    Conclusion

30. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.  

31. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Brendan Darcy
    Member