Zaytoune (Migration)

[2018] AATA 5447

Zaytoune (Migration) [2018] AATA 5447 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Maha Zaytoune

VISA APPLICANT:  Ms Mariam HMOUDA

CASE NUMBER:  1812237

HOME AFFAIRS REFERENCE(S):           OSF2016/015114

MEMBER:Hugh Sanderson

DATE:20 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2018 at 9:08am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – child or step-child of sponsoring parent – daughter of ex-partner – treated visa applicant like her own daughter – no legal adoption – Certificate of Good Standing – responsibility of care – right of guardianship or custody – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 101.211

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 25 April 2018 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 7 December 2016. 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 criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate found that the visa applicant was not the child or step-child of the review applicant.

   Background

4. The review applicant was born in Lebanon. She has been married twice, on the first occasion to Tarek Hmouda who she married in 2002 and divorced in 2006, and the second time to Rami Kourouche who she married on 20 December 2010 and remains married to.

5. The review applicant had one child with Mr Hmouda, a son, Ali who is currently 13 years old. The review applicant claimed that she was the step-mother of two children of Mr Hmouda who she is now sponsoring for the grant of a Subclass 101 Child visa. The children she is sponsoring is the visa applicant in these proceedings, Mariam who is currently 19 years old, and her sister, Chaymaa who is currently 11 years old. The application for Chaymaa is subject to a separate decision (Tribunal Case number 1812291).

6. The review applicant claimed that when she married Mr Hmouda he had divorced his first wife, Sahar Wassouf, with whom he had a child, Mariam. It was claimed that Mariam lived with the applicant and Mr Hmouda and the applicant treated her as her own child. The marriage between the applicant and Mr Hmouda ended soon after the applicant gave birth to their son, Ali. They were only married for about three years. Mr Hmouda then remarried his former wife, Ms Wassouf. It was claimed that the marriage between Mr Hmouda and Ms Wassouf only lasted a few months. It was claimed that when Ms Wassouf left Mr Hmouda she was pregnant with Chaymaa. A religious divorce was granted to Mr Hmouda and Ms Wassouf two months after the birth of Chaymaa and this was formalised by a civil decree in Lebanon on 21 November 2007.

7. The review applicant claimed that after Ms Wassouf left Mr Hmouda all three children lived with her and her parents. The applicant claimed that she then met her present husband in 2008 in Lebanon. She married him on 20 December 2010 and he sponsored her for a Partner visa. The applicant was granted a Subclass 309 Partner visa in March 2011. She travelled to Australia on 3 July 2011. She then returned to Lebanon on 2 September 2011 and remained living out of Australia for a year. She returned to Australia on 5 September 2012. She has only left Australia on one occasion since then, departing on 8 December 2014 and returning on 22 January 2015. It was claimed that while she was living in Australia she kept in regular communication with both girls. The review applicant became an Australian citizen on 14 June 2017.

8. The review applicant sponsored Mariam and Chaymaa for the Child visas claiming that they were her step-children. She said that although she was not related biologically to the children she felt that she was their true mother because she had adopted them from their birth and treated them like her own daughters in every aspect of their lives. There was no claim made that there was any formal adoption of the children or that they were adopted under any customary law. The only claim that was made was that the children were the review applicant’s step-children.

9. A Certificate of Wellbeing was provided dated 21 April 2016 which stated the children’s father was “competent to manage the affairs of his minor children”. A letter dated 28 February 2017, after the application had been filed, was provided from the father stating that he was the “true guardian of (his) three children” and “would like to freely and conscientiously transfer that custody and guardianship to (the review applicant)”. No Court or other order was provided to show that the review applicant had any legal right or responsibility for the children under Lebanese law.

10. The delegate who considered the application noted the following issues:

    ·When the review applicant applied for her Partner visa the only child she declared in that application was her son, Ali;

    ·The review applicant said in her Partner visa application that her son had been living with his father who supported him financially but she has regular contact with him;

    ·When the review applicant’s husband was interviewed in respect of her Partner visa application, she said the only child she had was her son, Ali;

    ·No mention was made by the review applicant or her husband during the interviews in respect of the Partner visa application that the review applicant had any step-children or that she was involved in their lives in any way;

    ·The family census of Mr Hmouda shows that he has married his third wife and that all his children reside with him;

    ·A document was provided described as Certificate of Wellbeing, Legal Document No:822/822, which confirmed that Mr Hmouda is able to take care of his minor children, Mariam, Ali and Chaymaa and was the person who was issued with the responsibility for all their affairs as their mandatory guardian and had “the right to nominate any other person to assume such responsibility and to defend the rights of the foresaid minors before all courts, references and directions till last degrees. He has the right to obtain passports for them from the competent authorities (if necessary). And their travel outside the Lebanese territories is allowed”; and

    ·A letter had been signed by Mr Hmouda consenting to his two daughters travelling to Australia.

11. The delegate was not satisfied that the girls were the step-children, as defined in r.1.03, of the review applicant. The delegate was satisfied that the children had lived with the review applicant, but that after she commenced her relationship with her current partner the children returned to live with their father and, although the review applicant may have seen them at the same time she saw her son, she did not have any responsibility for their care. She was never granted any right of guardianship or custody. She did not refer to the children as being her step-children or having any other relationship with her when she applied for her Partner visa. The children did not undergo medical examinations which would have been required in respect of the Partner visa application for non-migrating children. Although the review applicant had sent money to Mr Hmouda, this was more likely to have been for the financial support of her son rather than for the girls for whom she has no responsibility. There was no evidence that the review applicant had been given guardianship or custody under any law in Australia or overseas. The information from Lebanon was that Mr Hmouda had sole guardianship and custody for all three of his children.

12. Accordingly, the delegate found that the visa applicant and her sister were not the step-children of the review applicant as defined in r.1.03. Therefore the visa applicants did not meet the criteria in cl.101.211 the application was refused.

    Information to the Tribunal

13. The review applicant appeared before the Tribunal on 19 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

14. The review applicant said that when she applied for her Partner visa as she did not refer to the two girls as her children because her English was not very good and her husband prepared the documents. She said that her former husband did not want the girls to come to Australia and so they were not mentioned in the application. She said that as she was having problems with her former husband at the time she was interviewed by the Department she did not make any mention of the girls.

15. The review applicant said her former husband obtained the Certificate of Good Standing because the mother of the girls had disappeared and he wanted to ensure that he had the authority to take the girls out of Lebanon if he needed to do so and have full legal rights over them.

16. The Tribunal referred to the definition of a step-child under the regulations. The review applicant confirmed that there was no order in force in respect of the children under the Family Law Act 1975. She said that there was no order for guardianship or custody of the children in her favour in Lebanon. She said that Lebanese law does not allow her to adopt the children and so there was no law in Lebanon giving her guardianship or custody of the girls.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the visa applicant is the step-child of the review applicant as defined in the regulations.

19. It is claimed that the Mariam and Chaymaa are the step-children of the review applicant. Mariam and Chaymaa are both children to the review applicant’s first husband, Mr Hmouda, and his relationship with his first wife before and after his marriage to the review applicant. Mariam was born prior to the review applicant’s marriage to Mr Hmouda and Chaymaa was born after the review applicant had divorced Mr Hmouda.

20. The criteria in cl.101.211(1)(c)(1) requires the visa applicant is either the child or the step-child within the meaning of paragraph (b) of the definition of step-child of the sponsoring parent. The definition of step-child is found in r.1.03. This states as follows:

    step-child in relation to a parent, means:

    (a)  a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or

    (b)  a person who is not the child of the parent but:

    (i)  who is the child of the parent's former spouse or former de facto partner; and

    (ii)  who has not turned 18; and

    (iii)  in relation to whom the parent has:

    (A)  a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)  guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

21. The review applicant confirmed that there are no parenting orders under Australian law that provide for where Mariam and Chaymaa are to live or who is to be responsible for their long-term or day-to-day care, welfare and development. Accordingly the criteria for the definition of a step-child in (b)(iii)(A) is not met.

22. The review applicant said that there was no order made in any Lebanese court or made by any other authority in Lebanon which provides that she has the guardianship or custody of Mariam and Chaymaa. She said that Lebanese law does not provide for adoption of children. She has not applied for or been granted any order in respect of Mariam and Chaymaa which would provide that she has their guardianship or custody.

23. The review applicant’s former husband, the father of Mariam and Chaymaa, has obtained from the Religious Sunnite Courts a Certificate of Good Standing which provides that he assumes the responsibility of all affairs related to Mariam and Chaymaa. It does not provide that the review applicant has any rights or responsibilities in respect of Mariam and Chaymaa. The order was purported to be made on 21 April 2016, prior to the application being filed.

24. The review applicant provided a letter from her former husband stating that he supports the sponsorship of the application by the review applicant. The Tribunal does not accept that this letter gives the review applicant the guardianship or custody of Mariam and Chaymaa. Children are not property and cannot be given away by the person who has the responsibility and duties of their guardianship and/or custody. The responsibilities and duties of the custody and guardianship of Mariam and Chaymaa remain with the former husband of the review applicant. The Tribunal does not accept that by the former husband of the review applicant signing this letter that the review applicant has the guardianship or custody of Mariam and Chaymaa in Lebanon.

25. Even if it was accepted that this letter from the review applicant’s former husband does give to the review applicant guardianship and custody of Mariam and Chaymaa, this letter was only signed on 28 February 2017, after the application was filed. The requirement of cl.101.211 is a time of application criteria. If this letter was considered the legal appointment of the review applicant as the guardian or custodian of Mariam and Chaymaa it was only signed by the review applicant’s former husband after the visa application was made. Accordingly, at the time of the application the review applicant cannot be said to have had guardianship or custody of Mariam and Chaymaa and therefore they would not meet the criteria for the grant of the visa as the step-children of the review applicant.

26. The Tribunal has considered all the circumstances of Mariam and Chaymaa and the review applicant. The Tribunal acknowledges that the review applicant has an emotional attachment to Mariam and Chaymaa and has been involved in their care since the time she first started her relationship with her former husband. This does not mean, however, that she has been given the legal responsibility for the guardianship and/or custody of Mariam and Chaymaa in Lebanon or in any other country. The definition of a step-child in paragraph (b) requires the person who is not the biological parent of the child to have a parenting order under the Family Law Act of Australia or the rights, duties and responsibility of guardianship or custody in force in a foreign country.

27. As the review applicant does not have guardianship or custody of Mariam and Chaymaa as recognised under Lebanese law Mariam and Chaymaa do not meet the definition of a step-child of the review applicant as required by cl.101.211(1)(c)(1).

28. Accordingly, cl.101.211(1)(c) is not met at the time of application.

29. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Hugh Sanderson
    Member