Yadav (Migration)

[2017] AATA 217

Yadav (Migration) [2017] AATA 217 (1 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amit Yadav

CASE NUMBER:  1512970

DIBP REFERENCE(S):  CLF2015/59349

MEMBER:John Cipolla

DATE:1 February 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(6)(c)(ii) (A) of Schedule 2 to the Regulations.

Statement made on 01 February 2017 at 8:53am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Spousal relationship ceased – Biological child – Alternate grounds – Issue of formal Court orders – Statutory imposition for parental responsibility

LEGISLATION
Family Law Act 1975
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, s 65, cl 801.22, r 1.03

CASES
Fitch v Migration Review Tribunal [2004] FCA 1673
Ortiz v MIAC [2011] FMCA 432
Srour v MIMIA [2006] FCA 1228
Yazbeck v Minister for Immigration & Multicultural Affairs [2002] FCA 980

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 on 26 August 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2012 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.801.221(6).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(6)(1)(b) because the delegate found that the applicant and the sponsor were not in a spousal relationship at the time of the cessation of their relationship.

4. The applicant appeared before the Tribunal on 6 December 2016 to give evidence and present arguments. The applicant also provided in advance of the hearing evidence including statements pertaining to his de facto relationship with the sponsor up until the time of its cessation.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can meet the provisions at.cl.801.221 of the Migration Regulations. It is not in dispute the relationship between the applicant and the sponsor has ceased. As a result, the applicant cannot be considered to be the spouse of the sponsor.

8. In such circumstances, the alternate grounds in cl.801.221 allow for the satisfaction of prescribed criteria notwithstanding the breakdown of the relationship which was the basis of the original application.

9. In this case, the applicant has asserted his parentage of Ranveer Ashton Yadav date of birth 23 June 2013 as the basis on which he would satisfy the alternate criteria at cl.801.221(6)(c)(ii) of the Migration Regulations. He has not raised any other matters relevant to cl.801.221 which he claims to satisfy.

10. Clear evidence has been provided to the Tribunal at review stage that indicates that the applicant is the biological parent of Ranveer Yadav including the child’s birth certificate registered on 28 August 2013 in Brisbane and a range of other evidence corroborative of the parental relationship.

11. The Tribunal conducted a review hearing on 6 December 2016.  The applicant attended the review hearing with his current partner.  During the review hearing the Tribunal made reference to the relevant legislative considerations that apply when a spousal relationship has ceased and an applicant wishes to avail themselves of the exceptions that apply that can lead to the grant of permanent residence after the cessation of a spousal relationship.

12. The Tribunal noted that where the spouse relationship has ceased and both the applicant and the sponsoring partner have ongoing legal rights or obligations in respect of a child, the applicant may be eligible for a partner visa despite the relationship having ceased. The applicant will meet these requirements if he:

    (A)has custody or joint custody of, or access to; or

    (B)has a residence order or contact order made under the Family Law Act 1975 relating to;

    at least 1 child in respect of whom the sponsoring partner:

    (C)has been granted joint custody or access by a court; or

    (D)has a residence order or contact order made under the Family Law Act 1975; or

    (E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

13. Custody is defined in r.1.03 as ‘the right to have the daily care and control of the child and the right and responsibility to make decisions concerning the daily care and control of the child’.

14. The law around whether formal court orders are required to satisfy (A) above is unsettled and there are divergent views.  To this end the Tribunal expressed at the review hearing that the provisions could be read in such a way that there was a need for there to be formal court orders pertaining to custody, access or maintenance for the provision to be satisfied.  The applicant advised that he is currently pursuing formal orders in relation to his son through the Family Court of Australia and the Tribunal was advised post hearing through the applicant’s representative that this could be resolved sometime in March 2017. The Tribunal advised it would be receptive to the provision of any formal court orders by March 2017.

15. Post hearing the Tribunal has carefully reviewed the current judicial authority around this issue. The issue of whether formal court orders are required to satisfy (A) above was discussed in the case of Fitch v Migration Review Tribunal [2004] FCA 1673 (Fitch). In this decision, Dowsett J declined to follow an earlier decision of Sundberg J in Yazbeck v Minister for Immigration & Multicultural Affairs [2002] FCA 980 (Yazbeck). Dowsett J held that cl.801.221(6)(c)(ii) did not require the applicant to have formal arrangements in place by way of a Court order. The Court noted that ‘custody’ was defined by r.1.03 of the Migration Regulations as ‘the right to have the daily care and control of the child and the right and responsibility to make decisions concerning the daily care and control of the child.’ The Court found that this would be satisfied by the general law obligations of a biological parent to his/her child (provided there was no Court order granting sole custody to the other parent).

16. The judgement in Srour v MIMIA [2006] FCA 1228 (Srour) held in relation to the child exception that an applicant can have a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act 1975 in relation to a biological child at [57]. Consequently, the applicant can meet the requirements in (A) to have custody of the child by virtue of the general law obligations of a biological parent to his/her child, provided there is no Court order granting sole custody to the other parent.

17. Moor J in Srour took the view that, while the approach of neither Sundberg J (in Yazbeck) nor Dowsett J (in Fitch) is plainly or clearly wrong, Dowsett J’s decision in Fitch, being the more recent, is the judgement on which decision makers would base their decisions and in his view, Dowsett’s reasoning is marginally more compelling. In Ortiz v MIAC [2011] FMCA 432 (Burnett FM, 9 June 2011) at [20] the Court summarised the principles arising from Yazbeck, Fitch and Srour as including that a party has a right to custody as an incident of the statutory imposition for parental responsibility by operation of the Family Law Act and accordingly an applicant who is the biological parent of the child may satisfy item (A) even where there is no Court ordered custody or maintenance arrangement. This issue was not considered in detail on appeal: Ortiz v MIAC [2011] FC A 1498 (Logan J, 22 December 2011)

18. Therefore while the matter is not entirely settled, there does not appear to be a requirement for formal Court orders as evidence of ‘custody or joint custody of, or access to’ the child. However, this will not be the case if there are Court orders extinguishing or varying custody or access to the child.

19. The evidence of the applicant is that he is pursuing formal orders in relation to his son that have not yet been finalised that there are at this point no formal court orders extinguishing or varying parental responsibility, custody or access to the applicant’s son.

20. The Tribunal therefore finds that the applicant has custody of his son within the meaning of r.1.03 and that there are no Court orders varying his parental responsibility towards his son and he therefore satisfies cl.801.221(6)(c)(ii)(A).

    CONCLUSION

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the reaming criteria for a Subclass 801 visa.

    DECISION

22. The Tribunal remits the application for a Partner (Residence) (Class BS) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    cl.801.221(6)(c)(ii)(A) of Schedule 2 to the Regulations

    John Cipolla
    Senior Member