October 2019 Issue 749
More on Section 313
Thanks for including links to the two Queensland cases about Section 313 I of the Migration Act in your last newsletter.
While the outcome was clearly correct since no proper statement of services (otherwise known as an invoice) was ever provided, I think the Tribunal in the first instance case was wrong when it said that the failure to give a statement within 28 days of the final decision would “alone” be sufficient to activate the client’s entitlement to recover the money paid. The appeal case did not deal with that point.
Section 313 gives the client an entitlement to recover payments made where all three of the circumstances listed apply:
(a) made the payment to a registered migration agent for giving immigration assistance; and
(b) did not receive a statement of services before making the payment; and
(c) does not receive a statement of services within the period worked out in accordance with the regulations.
If any one of those three circumstances does not apply, the client is not entitled to recover the payment.
In other words, so long as a statement of services (invoice) is issued before payment is made (which I interpret as being before money is transferred from the clients account to the operating account), there is no need to provide a final statement of services within 28 days of completion.
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Who is a parent-it is not as simple as it seems-an extract from the Procedures Advice Manual:
3.2 Meaning of ‘Parent’
There is no definition of the term ‘parent’ in the Act. Up until 2010, citizenship by descent was limited under the Act to biological children. Following the decision of the Full Federal Court (FFC) in H v Minister for Immigration and Citizenship FCAFC 119 (H case) on 15 September 2010, citizenship by descent can also be accessed by non-biological children in circumstances where a parent-child relationship existed at the time of the child’s birth. Therefore, the term ‘parent’ where used elsewhere in the Act including citizenship by birth, also includes non-biological parentage.
Consistent with the H case, the determination of whether a person is a parent is a question of fact and should be made on a case-by-case basis, in consideration of all the relevant information in the circumstances, including biological, legal, and social factors
A parent-child relationship that developed after the birth of a child, such as adoption, would not suffice for the purposes of citizenship by descent or birth in Australia. For further information on citizenship by adoption see Australian Citizenship Instruction 22 – Australian citizenship by adoption.
The status of a person as a parent under a foreign law may be taken into account, but is not a determinative factor as to whether that person is a parent for the purposes of the Act.
Parent not limited to biological parent
‘Parent’ in relationship to citizenship by descent is not limited to a biological parent. For further information on how to assess a parent-child relationship please refer to Citizenship Instruction 23 – Determining Parent- Child Relationship for the Purposes of the Citizenship Act.
If there is no biological link, substantive and verifiable evidence to support a non-biological parental link between the applicant and the claimed Australian citizen parent at the time of the applicant’s birth must be provided.
It is unlikely that any one piece of evidence would be sufficient to prove the required parent-child relationship. The decision-maker is required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent was or was not a parent of the applicant at the relevant time.
Evidence that a claimed parent-child relationship existed at the time of a child’s birth may include, but is not limited to:
- evidence that the claimed parents were in a genuine and continuing relationship prior to and at the time of the child’s birth;
- evidence that the claimed Australian citizen or permanent resident parent was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth, antenatal and postnatal care;
- evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident parent’s child; and
- when a child is born through a surrogacy arrangement – a formal surrogacy agreement entered into before the child was conceived and, if available, lawful transfer of parentage prior to or after the birth.
Evidence that the claimed Australian citizen parent treated the child as their own from some point in time after the child’s birth is not evidence that they were the child’s parent at time of birth.
From courts and tribunals.
A win for the Minister
Level of risk
Anything but migration
Do they still exist?
Lewis & Bollard
Solicitors and migration agents
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PO Box A96, Sydney South NSW 1235
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Information (or the lack of it) contained in past, the present or future editions of the Migration Newsletter (the newsletter) should not be relied on by anyone as immigration assistance or legal advice. Peter Bollard and Gareth Lewis expressly disclaim any liability, arising at law, in equity or otherwise, for any information published or not published in past, the present or future editions of the newsletter. People seeking immigration assistance should seek advice from a registered migration agent and those seeking legal advice should consult with a lawyer. The copyright in the newsletter belongs to Peter Bollard and no part of the newsletter is to be reproduced by any means without the written consent of Peter Bollard.