2004856 (Migration)

[2022] AATA 2532

2004856 (Migration) [2022] AATA 2532 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004856

HOME AFFAIRS REFERENCE(S):          OSF2017/053321

MEMBER:David Crawshay

DATE:22 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 22 April 2022 at 2:37pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – legal permission for child’s removal – consent from the visa applicant’s biological father – whether the biological father is alive – inquiries with the Australian Red Cross’ Restoring Family Links Service – no other inquiries made – common law presumption of death – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.226; Schedule 4, PIC 4017

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 9 January 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 16 June 2017. 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.226, which requires a visa applicant to satisfy Public Interest Criterion (“PIC”) 4017.

4. The delegate refused to grant the visas on the basis that cl.101.226 was not met because the delegate was not satisfied that the visa applicants met PIC 4017. The delegate found that

5. The review applicant appeared before the Tribunal on 20 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicants satisfy PIC 4017, which is required by cl.101.226 where the visa applicants have not turned 18 at the time of decision. As at the time of this decision, the visa applicants have not yet turned 18.

8. Public Interest Criterion 4017 provides as follows:

   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.

9. There is no evidence before the Tribunal that the law of the visa applicant’s home country permits their removal. The Tribunal is not satisfied that the visa applicants satisfy Item 4017(a).

10. There is no evidence before the Tribunal that the grant of the visa would be consistent with any Australian child order in force in relation to the visa applicants. The Tribunal is not satisfied that the visa applicants satisfy Item 4017(c).

11. The visa applicants therefore seek to satisfy Item 4017(b).

12. The Tribunal notes the presence of a letter from the Australian Red Cross’ Restoring Family Links Service dated [in] April 2018 (Letter of Involvement), which relevantly stated as follows:

    Australian Red Cross' Restoring Family Links has assisted the enquirer as follows:

    Name of Enquirer: [Review applicant]

    Name of Sought Person and Relationship to Enquirer: [Mr A] (also known as [Alias 1]) is husband to the enquirer

    Date: 3/01/2011
    Action: Case considered for Tracing with the Australian Red Cross. The enquirer is searching for her missing husband in Sri Lanka.

    Date: 7/06/2011
    Action: Tracing request unable to be opened at this stage as it does not meet the criteria of the International Committee of the Red Cross (ICRC) in Colombo, Sri Lanka who are only accepting cases in relation to the 2009 conflict.

    Date: 06/10/2017
    Action: Enquirer reapproached the Australian Red Cross as husband is still missing. ICRC Sri Lanka's guidelines have changed and the missing case now fits the criteria. Tracing request open with the Australian Red Cross and submitted to ICRC Colombo for consideration.

    Date: 13/03/2018
    Action: ICRC Colombo relay that their searches have resulted in the following: the sought person was visited whilst in LTTE custody by the ICRC from [November] 2006 – [October] 2007. The ICRC confirmed that the sought person was still detained on 27/05/08. Further information received identified the sought person was in [a named] IDP Camp in 2010. ICRC Colombo visited the sought persons' father in early 2018 in Trincomalee, Sri Lanka. He advised the last contact he had with the sought person was in 2012. He has no contact with him now, no contact details for him and no information on his whereabouts.

    Date: 10/04/2018
    Action: The above information is relayed to the enquirer. An email is sent to ICRC Colombo to request if any further searches can be done or if the case is to be closed.

    Date: 11/04/2018
    Action: Email received from ICRC Colombo stating that no further searches are possible and case will now need to be closed on their side.

    [emphasis in original]

13. For unknown reasons, this Letter of Involvement was not considered in the delegate’s decision, despite being sent to the Department in April 2018. An earlier letter from the Australian Red Cross titled “International Tracing”, dated November 2012, stated that the review applicant’s “tracing case” in respect of [Alias 1] was unsuccessful as it had been unable to obtain any information from the International Committee of the Red Cross. This earlier letter was considered in the delegate’s decision.

14. In pre-hearing submissions, the review applicant provided an undated letter from a church in Sri Lanka. This letter relevantly stated that the visa applicants “lost their father during the civil strife that was at its peak in and around the years 2008 and 2009 in the northern province of srilanka [sic]”. A letter dated 8 April 2022 from “[Mr B]”, who purported to be a Grama Niladari,[1] stated that [Mr A] deserted the review applicant in 2006. A document titled “Affidavit” and dated 8 April 2022 from [Ms C], who claims to be a parent of the review applicant (most likely her mother based on other information such as a Form 80 signed by the review applicant on 25 July 2017), similarly stated that [Mr A] deserted her in 2006.

    [1] A Grama Niladari, or Grama Niladhari, is a “village officer” who acts in an administrative capacity: “DFAT Country Information Report – Sri Lanka”.

15. At hearing, the review applicant told the Tribunal that she had not seen or communicated with [Mr A] since 2006. She said that he had gone to a place called [Town 1] where he stayed with the LTTE (Liberation Tigers of Tamil Eelam). When asked whether he was there voluntarily or as a captive, the review applicant replied that he volunteered and stayed with them.

16. The Tribunal asked the review applicant if she had spoken to other people who had heard from [Mr A] since 2006. She said that she had not received any information from anybody, including relatives. It asked specifically whether she had spoken to [Mr A’s] father, and she replied that she had spoken to him (later in the hearing she said that this was in 2008) and that he had yelled at her because her marriage to [Mr A] was a love marriage as opposed to an arranged marriage.

17. The Tribunal asked the review applicant why she had not heard from [Mr A] if her marriage to him was a love marriage. She replied that the problem began in 2006 when the road between [Town 1] and Jaffna was closed. She said that her son was born in [year] and she was staying with her mother at that time. She said that she was able to get to [City 1] in 2007 where she stayed in a camp because of safety.

18. At this point, the Tribunal put to the review applicant that she had provided two documents (the letter from the Grama Niladari and the document titled “Affidavit” from her mother) stating that [Mr A] had “deserted” her. The review applicant replied that in Sri Lanka, when you do not have contact with your husband, people say that you have been deserted. The Tribunal put to the review applicant that it appeared as if she and [Mr A] had become estranged from each other. She replied that when she came to Australia, she did not have any contact, did not try to have any contact and did not want to have any contact with him.

19. The Tribunal asked the review applicant about any details to do with [Mr A’s] purported service with the LTTE, and she said that she did not know what he was doing there but that he was paid wages which he would transfer to her. At this stage, the Tribunal read to the review applicant the following contents of the 12 April 2018 letter from the Australian Red Cross:

    ICRC Colombo relay that their searches have resulted in the following: the sought person was visited whilst in LTTE custody by the ICRC from [November] 2006 – [October] 2007. The ICRC confirmed that the sought person was still detained on 27 /05/08. Further information received identified the sought person was in [a named] IDP Camp in 2010.

20. The Tribunal put to the review applicant that it did not appear as if [Mr A] volunteered for the LTTE. She replied by saying that [Mr A] went voluntarily, but that she did not know what happened after that.

21. The Tribunal then discussed the contents of the undated letter from the church in Sri Lanka and specifically the claim that [Mr A] was killed “during the civil strife that was at its peak in and around the years 2008 and 2009”. It put to the review applicant that this was contradicted by other evidence that showed [Mr A] as being alive. The review applicant replied that the letter was sent through less-than-a-week ago and was based on information given to the priest by her two children. She said that her children had previously gone to the church in 2008 and 2009 to pray with the priest about [Mr A].

22. The Tribunal put to the review applicant that it had not seen a certificate of death or a certificate of absence in respect of [Mr A], reminding her that this was a concern for the delegate in the delegate’s decision. It told her that, while COVID-19 had intervened, she had had some opportunity to travel to Sri Lanka on an Australian passport (she attained Australian citizenship in April 2019). The review applicant replied that she was a single mother with two small children to look after. She said that if she were not able to work, she would not be able to provide for them.

23. The Tribunal put its concerns to the review applicant that, based on the evidence in front of, it might not be satisfied that [Mr A] was dead, which it explained was essentially the only outcome that would mean she had sole custody of the visa applicants. The review applicant said that when she tried to gather information from [Mr A’s] father, he yelled at her to bring his son back. She said that the way he spoke to her was very, very cruel and that he blamed her for purposely taking [Mr A] and giving him to the LTTE. She said that, if she tried to return to Sri Lanka, his family would be so angry with her and might inform her arrival “to them”.

24. The Tribunal explained to the review applicant that it may have regard to the common law presumption of death. It told her that the presumption may be invoked where, in certain cases, a person has been missing for seven years or more. It detailed the matters that are relevant in assessing whether someone is presumed to be dead, including

    ·whether other persons were likely to have received contact from the person presumed dead;

    ·what inquiries were made;

    ·the circumstances in which the person in question was last known to be alive; and

    ·any other relevant factors.

25. The Tribunal put to the review applicant that she and [Mr A] were estranged and, while she had made inquiries of the Australian Red Cross, she had not made more “local” inquiries through family and friends of [Mr A]. The review applicant said that she could not trust his relatives. She said that, if she inquired about [Mr A], they might inform about how she was in Australia, the visa applicants were in Sri Lanka, and [Mr A] was part of the LTTE. When asked to clarify to whom his relatives would divulge the information, she said the Sri Lankan authorities. She said that they can inform the authorities that [Mr A] was in the LTTE, and that once they know that someone was in the LTTE, their life is finished. The Tribunal put to the review applicant that authoritative evidence showed that [Mr A] was held captive by the LTTE and was not their volunteer. She replied that she will not accept this because she knows that he voluntarily joined the LTTE after he married her.

26. The Tribunal has considered the evidence in front of it and has made the following findings.

27. The Tribunal accepts the contents of the Letter of Involvement from the Australian Red Cross from April 2018 and gives it more weight than the claims of the review applicant. In particular, it finds that the Australian Red Cross, and its counterpart the International Committee of the Red Cross through whom it received the information, is an authoritative source on matters to do with people who are displaced during wars such as the civil war in Sri Lanka. Having found in this way, it accepts that [Mr A] was held in LTTE custody from at least October 2006 until 2008 and does not accept that he volunteered for the LTTE as claimed by the review applicant or was otherwise a part of it. It certainly does not accept that [Mr A] had died as was claimed in the undated letter from the church in Sri Lanka. This claim is given no weight.

28. Based again on the contents of the Letter of Involvement from the Australian Red Cross, the Tribunal accepts that [Mr A] was in [a named] IDP (internally displaced persons) Camp in 2010. Finally, it accepts that he was in contact with his father in 2012 and that, as at April 2018, this was the last-known communication with him. It was not stated in the Letter of Involvement where or in what state the review applicant’s husband was at this stage.

29. The Tribunal has considered that [Mr A] has not been heard from since 2012. While at the time of application in June 2017, and indeed when the Letter of Involvement was written in April 2018, the seven-year limit for invoking the common law presumption of death had not yet elapsed, the Tribunal notes that PIC 4017 is a time-of-decision criterion by virtue of being a requirement of cl.101.226. Accordingly, as at the date of this decision, [Mr A] has not been heard from in around 10 years. Although the Tribunal is not bound by rules of evidence, it accepts that the presumption may be a relevant consideration in this matter.

30. The common law presumption of death is commonly expressed as follows:

    If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of, by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or have learned of his whereabouts, were he living then, in the absence of evidence to the contrary, it should be found that he is dead.[2]

    [2] Axon v Axon (1937) 59 CLR 395 at 405.

31. A decision-maker who wishes to invoke the presumption should consider the whole circumstances of the case. As above and as explained to the review applicant at hearing, this includes whether other persons were likely to have received contact from the person presumed dead, what inquiries were made, the circumstances in which the person in question was last known to be alive, and any other relevant factors.

32. In relation to the inquiries made, the Tribunal has considered that the review applicant has made inquiries about [Mr A’s] fate through the Australian Red Cross, but has otherwise made no inquiries either through her own efforts or through others since at least 2008 when she last spoke to his father. Moreover, it accepts and gives some weight to the contents of the document titled “Affidavit” wherein the review applicant’s mother stated that [Mr A] “deserted” her. It also gives weight to her testimony at hearing that she had not contacted him, nor had she tried to or wanted to. It finds that this evidence of estrangement likely explains her lack of inquiries about [Mr A’s] fate. It does not accept that the reason for this lack of communication with family and friends of [Mr A] is because she is somehow being blackmailed by them, with [Mr A’s] purported membership of the LTTE being the information used by her potential blackmailers. In coming to this finding, the Tribunal is not satisfied that [Mr A] was ever a member of the LTTE. Furthermore, even if [Mr A’s] father felt some misgivings over his son marrying the review applicant “for love”, without more information the Tribunal does not accept that this would explain her complete inability to make enquiries of other members of [Mr A]’ family or his friends about his whereabouts.

33. In terms of whether other persons were likely to have received contact from [Mr A], the Tribunal again notes that the review applicant had made no inquiries of anyone else, including friends and relatives of [Mr A], since at least 2008 – or 14 years ago. It accepts, however, that [Mr A’s] father had not heard from him in the six years from 2012 until 2018. It accepts that [Mr A’s] father is a person who is likely to have received contact from him.

34. As to the circumstances in which [Mr A] was last known to be alive, the Tribunal notes that no information was given as to his situation in 2012 when he was last heard from. However, based on the contents of the Letter of Involvement he was no longer in LTTE custody at that time, the war having ended in 2009, and had been in an internally displaced persons camp in 2010 although it is not known if he was still there in 2012. While the Tribunal notes that [Mr A] had previously been held by the LTTE, there is no evidence in front of it that he was being pursued or targeted by them after the cessation of the war in 2009. The review applicant’s steadfast refusal to acknowledge that [Mr A] was held by the LTTE prevented her from giving testimony about the reason for his being held, which may have in turn assisted the Tribunal in ascertaining if there was a motivation for the LTTE (or its successors) to pursue or target him after he left their custody.

35. Regarding any other relevant factor, the Tribunal finds based on evidence given by the review applicant at hearing that [Mr A] was [age] or [age] in 2012 and would currently be [age] years of age. It finds that this is well within the life expectancy for males in Sri Lanka.[3]

    [3] World Bank, “Life expectancy at birth, male (years) – Sri Lanka”, /SP.DYN.LE00.MA.IN?locations=LK.

36. The Tribunal draws some adverse inferences from the lack of a certificate of death or certificate of absence, which it notes was an issue for the delegate in the delegate’s decision. While it acknowledges that the review applicant may have previously been limited in her ability to travel to Sri Lanka due to being the holder of a [specified] visa, she has been an Australian citizen since April 2019 and therefore eligible to travel on an Australian passport since that time. In terms of the review applicant’s claim to not be able to afford the fare to Sri Lanka, the Tribunal notes that her request for a reduction of the review application fee was refused, meaning that the registrar of the Tribunal was not satisfied that payment of the full fee would cause her severe financial hardship.[4] Moreover, while she had submitted evidence to show that she received Centrelink payments as part of her request for fee reduction in March 2020, these payments exceeded her expenses and, in any case, she has since provided no information about her current financial situation in circumstances where she claimed to be working.

    [4] Regulation 4.13(4) of the Migration Regulations: If the Registrar of the Tribunal is satisfied that the payment of the fee mentioned in subregulation (1) has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar may determine that the fee payable is 50% of the amount mentioned in subregulation (1).

1. Finally, the Tribunal considers that it is relevant that the review applicant obtained a letter from a Grama Niladari in April 2022 stating that [Mr A] deserted the review applicant and not that he had died or was missing. It finds that a Grama Niladari, as someone who acts in an administrative capacity, would be in a position to be able to attest to someone having died or gone missing if that were actually the case.

   CONCLUSION

2. In light of the above information and findings made, the Tribunal is not satisfied that [Mr A] has died or can be presumed dead. While it accepts and gives weight to the fact that [Mr A] had not been heard from by his father for six years as at 2018, and that the review applicant had made inquiries with the Australian Red Cross, it also gives countervailing weight to the fact that she had made no inquiries of his relatives and friends since 2008 when she claims to have spoken to his father, and that this absence of inquiry was not motivated by her fear of being blackmailed by [Mr A]’ family but rather by her estrangement from him. In this regard, even though [Mr A]’ absence and the lack of communication with him is so far unexplained, it may not be said to be unexpected given these circumstances.

3. The Tribunal also gives countervailing weight to the fact that recent letters, including one from a Grama Niladari, have only stated that [Mr A] deserted the review applicant and not that he was dead or missing. It gives weight of an adverse nature to the fact that the review applicant has not obtained a certificate of death or certificate of absence, although it diminishes the amount of weight given to this fact due to the intervening border closures occasioned by the COVID-19 lockdowns. The Tribunal gives no weight either way to the lack of evidence in the Letter of Involvement from the Australian Red Cross as to where and in what state [Mr A] found himself in 2012 when he was last heard of, although it finds that he was previously in a camp for internally displaced persons in 2010 and there is no evidence that he was being pursued or targeted by the LTTE or the Sri Lankan authorities. Finally, it accords some weight in support of [Mr A] being alive to the fact that he would currently be [age] years old.

4. Given the findings above, the Tribunal is not satisfied that each person who can lawfully determine where the visa applicants are to live consents to the grant of the visa. As the father of the visa applicants, [Mr A], is not dead, he is required to give the relevant consents but has not.

5. Accordingly, Item 4017(b) is not met. Because none of the items under public interest criterion 4017 is satisfied, the criterion itself is not satisfied.

6. 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 subclass in Class AH (Subclasses 102 and 117), being Adoption and Orphan Relative respectively.

   DECISION

7. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

   David Crawshay
   Member