[Phanom]

Hi all,

I am going though the process at the moment of Partner Provisional (subclass 309) visa for my wife and step daughter, I have submitted application, but have hit a little bit of an issue in regards to my wife's daughter.

DIAC case officer has asked us to get the father of the daughter to sign a form 1229 Consent to grant an Australian visa to a child under the age of 18 years.

Now the wife never married the childs father and she has not seen him and he has not wanted to see or support the the child since she was 3 months old (almost 3 years ago)

We supplied a Por Khor 14 from the local Government Office (Amphur), confirming that she has never married and under Thai law she has full custody of the child and they also don't recognise the father listed as the illegitimate father under Thai law.

Under Thai Law, if the parents of the child where not married at the time of birth the mother has automatic full custody of the child, and the father to get any custody or parental rights has to take the matter to court. The court will only give custody rights to the father if the mother agrees. If she doesn't its very difficult to get the court to give any custody rights to the father.

The Por Khor 14 is all that is required by the Thai Government to issue a passport and allow the child to leave Thailand, with out it you need permission from both parents (and they need to attended the passport office) and it was all that was required for the Australian Government to issue a Tourist Visa for the child.

Anyway when I questioned DIAC case officer on it, stating under Thai law that the father has no legal right over the daughter, and the Por Khor 14 meets the requirements as stated on their website and forms, so why do we need to get the fathers permission when he has no legal right to determine where the child lives and is not reconsigned as the illegitimate father.

I also included references to Thai law backing this up, as well as there own documentation.

I also asked what happens if I can't get the form signed .

DIAC case officers response was vague at best and didn't address anything I really asked, they said that "due the case load they get its a post requirement that we supply a form 1229 completed by the father. However, occasionally, there are instances where the consent of the non-migrating parent cannot be obtained and the applicant is therefore requested to provide a statement outline the facts? and under special circumstances the deciding officer may not require it."

Now we don't know where the father is, but we maybe could track him down though family if we had to, but he wouldn't sign the form anyway, out of spite.

Not sure what we should do has anyone else run it this sort of issue or have any suggestions?

 

[MarkNortham]

Sounds like the father is a dead end - I would instead consider creating a formal statutory declaration describing the situation with as many statements of support and references to Thai law (perhaps from a Thai lawyer) as you can. Don't to it verbally - that's not going to get you anywhere with DIAC. It needs to be a formal submission with references to Thai law and the supporting statements.

Hope this helps -

Best,

Mark Northam

 

[Phanom]

Thanks Mark, that is what we were thinking of doing. We just think its odd of DIAC to ask for additional consent when we have already supplied the custody documents stating the mother has full custody.

I have spoken to DIAC in Australia about it, and even they thought the request for consent was a bit odd given the law. They said the custody documents supplied should have been enough.

They said to do the Stat Dec and also to say to the case officer that if the visa is not going to be approved to let us know and we will withdraw the daughter from the application, so the wife's visa can be approved.

They said then apply for a Dependent Child Visa (Subclass 445), and deal with the issue then.

I am not sure if the case officer has looked at the application that well and that maybe is the issue, as they have asked us to supply answers to another couple of questions that were a bit odd, but already clearly answered in the application.

 

[Phanom]

Just to update, my wife's and her daughters visa was granted without having to supply the signed consent.

Just supplied a signed stat dec outline why we didn't supply the consent and included reference to Thai law to back up the sole custody.