2017176 (Migration) - [2024] AATA 2453

2017176 (Migration) [2024] AATA 2453 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Jennifer Nguyen (MARN: 2117717)
CASE NUMBER: 2017176

MEMBER:David Crawshay
DATE:9 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 09 May 2024 at 9:10am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – failed to meet Public Interest Criterion 4017 – parental consent to grant of visa – inconsistent evidence of visa applicant’s paternity – credibility – not satisfied that visa applicant’s biological father unable to be found – decision under review affirmed

LEGISLATION
Family Law Act 1975 (Cth), ss 61B, 69P, 69R
Migration Act 1958, ss 65, 353
Migration Regulations 1994, Schedule 2, cl 101.226; Schedule 4, Public Interest Criterion 4017

CASES
A v MIMA (1999) 53 ALD 545, [1999] FCA 116

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 November 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 10 February 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl.101.226.
The delegate refused to grant the visa on the basis that cl.101.226 was not met because the visa applicant did not satisfy public interest criterion (PIC) 4017. In her decision to refuse the visa, the delegate was not satisfied that each person who can lawfully determine where the visa applicant is to live consents to the grant of the visa as required under PIC 4017(b).
The review applicant appeared before the Tribunal on 15 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant satisfies PIC 4017, which is required by cl.101.226 where an applicant has not turned 18 at the time of decision. As at the time of this decision the visa applicant has not yet turned 18. Therefore, he is required to meet PIC 4017.
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.
There is no evidence before the Tribunal that the law of the visa applicant’s home country permits her removal. The Tribunal is not satisfied that the visa applicant meets Item 4017(a).
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 applicant. The Tribunal is not satisfied that the visa applicant meets Item 4017(c).
The visa applicant therefore seeks to satisfy Item 4017(b), which requires the consent of each person who can lawfully determine where the visa applicant is to live to the grant of the visa.
Information in front of the delegate
On 8 October 2020, the delegate wrote to the visa applicant, seeking DNA testing to prove that Mr [A] was her father or information from her biological father. The information was requested because, while [Mr A] was listed as the visa applicant’s father in her Vietnamese birth certificate, the delegate was not satisfied that [Mr A] was the visa applicant’s biological father based on there being information indicating that he and the review applicant were in different countries at the time that the visa applicant was conceived.
Despite the request for DNA testing or other information, none was forthcoming. In an undated letter that was submitted on 29 October 2020, the visa applicant’s then-representative indicated that the review applicant and [Mr A] did not wish to undergo DNA testing as it was unnecessary. The representative wrote that the visa applicant was conceived during November [Year 1] when [Mr A] was in Vietnam and was born visa a caesarean section [in July Year 2]. The representative also pointed to the impact on the visa applicant’s psychological wellbeing, the expense of such testing and the effect of flooding and storms in the visa applicant’s current [residence]. These submissions were noted by the delegate in her decision.
In her decision, the delegate considered the claim that the visa applicant was conceived in November [Year 1] but ultimately found that the visa applicant was conceived between [date] September and [date] October [Year 1] based on a conception period estimate. She also found that the review applicant carried the pregnancy to 40 weeks based on information previously submitted to the Department.
Based on this information, the delegate was not satisfied that [Mr A] was the visa applicant’s biological father, and there was no evidence regarding the visa applicant’s biological father and his consent for her to permanently migrate to Australia.
Information since the delegate’s decision and at hearing
Since the delegate’s decision, the Tribunal has received one document that engages specifically with the issue of PIC 4017, being a submissions letter dated 8 March 2024 from the review applicant’s representative. In this letter, the review applicant’s representative relevantly stated as follows:
Biological Parentage and Consent: The Department's concerns regarding the biological parentage should not overshadow the established family unit, which includes the cultural and sociological acceptance of [Mr A] as the father. This familial structure, acknowledged legally by the Vietnamese authorities through the birth certificate, underscores a recognised and accepted parental role, meeting the spirit of PIC4017(b).
Best Interests of the Child: The paramount importance of the child's best interests appears to have been insufficiently considered. The potential separation from the familial unit, constituted by the Sponsor and [Mr A], poses a significant risk to the child's emotional and psychological well-being, aligning with the broader imperative to prioritise these interests in immigration proceedings.
Compassionate and Compelling Circumstances: The Sponsor and Applicant have endured considerable hardship, exacerbated by financial difficulties, natural disasters in Vietnam, and the impacts of travel restrictions during the Covid outbreak. These circumstances present a compelling case for reconsideration, highlighting the humanitarian aspect underpinning the application.
Financial Support: The Sponsor has consistently provided financial support to the visa applicant, [since] birth. This support demonstrates the Sponsor's commitment to the well-being and development of the Applicant, affirming the genuine parental relationship that exists between them. This financial commitment further demonstrates the Sponsor's role and responsibility as a parent, aligning with the criteria set forth in PIC4017(b), by evidencing the Sponsor's active participation in the Applicant's life and welfare.
This financial aspect is critical, not only as a demonstration of the existing bond and responsibility towards the Applicant but also as an indicator of the Sponsor's capacity and commitment to continue providing for the Applicant's needs upon their arrival in Australia. It is, therefore, submitted that the financial support provided by the Sponsor to the Applicant further substantiates the case for granting the Subclass 101 visa, reinforcing the arguments based on biological parentage and consent, the best interests of the child, and compassionate and compelling circumstances.
[emphasis in original; paragraph numbers omitted]
At hearing, the review applicant told the Tribunal that [Mr A] was the visa applicant’s biological father. When asked to explain why the period of conception fell outside the period that [Mr A] was in Vietnam by one month, the review applicant told it that she only knew she was pregnant when [Mr A] returned to Vietnam. The Tribunal remarked that the issue was not about when she knew she was pregnant, rather when she fell pregnant. The review applicant told it that she did not know when she got pregnant but knew when [Mr A] returned to her.
At this point, the Tribunal put to the review applicant that there was pretty compelling information to show that [Mr A] was not in Vietnam at the time of conception. The review applicant replied that, at the moment, she is the sponsor of the visa applicant, and she did not want to talk about what happened in the past. She said that, at the moment, [Mr A] was still the father of the visa applicant. She said that, if she was forced to say who the visa applicant’s father was, then she did not know where he was. She said that all she knew was that [Mr A] was her husband and so he was the father. She said that the visa applicant is innocent. The review applicant said that she had been waiting years for the hearing and that she wanted the chance to look after the visa applicant. She said that the only person to look after the visa applicant was the visa applicant’s grandmother who was old and weak.
At this point, the Tribunal asked the review applicant if she admitted to not knowing who the father of the visa applicant was based on her statement that she did not want to talk about what happened in the past. She replied that she only knew that [Mr A] was the current father of the visa applicant.
The Tribunal asked the review applicant what sexual partners she had between September and October [Year 1], to which she replied that she did not know. When it asked her to confirm that she had had sex with someone other than [Mr A] during this time, the review applicant said no. The Tribunal put to her the implausibility of her answer in light of the compelling information on file. The review applicant offered no response.
The Tribunal sought [Mr A]’s current whereabouts from the review applicant. She replied that she was not sure and did not know where he was going. When asked, she said that she and [Mr A] were separated and had been for a few months since 2023. She said that the last time they had spoken to each other was a few months ago.
The review applicant told the Tribunal that the visa applicant was being cared for by the review applicant’s nephew. She told it that the visa applicant’s grandmother was currently in Australia as a visitor. She said that the visa of the review applicant’s grandmother was a three-year, multi-entry visa.
The Tribunal indicated to the review applicant at hearing that it did not intend to take evidence from the visa applicant on the basis that it did not consider the evidence to be useful given her age at the time of the events in issue. The review applicant concurred.
The Tribunal then laid out its concerns to the review applicant. It reiterated the first of these, being that there was information showing that [Mr A] was not the visa applicant’s biological father. It told her of another concern, being that she had maintained that she did not have any other sexual partners during the period identified by the Department between September and October [Year 1]. The Tribunal explained that this cast doubt on her credibility about a very important issue. It explained that this also prevented it from pursuing a line of questioning whereby it could either uncover the identity of the biological father and get that person to execute the necessary document, which could be a straightforward process, or establish circumstances where the identity of the biological father is unknown.
In response, the review applicant told the Tribunal that if something happened to her during a trip or party, then she would not know who that person was. The Tribunal put to her at this point that she had earlier told it that she had not had sex with anyone during that period. The review applicant said that she did not even know what she did when she was drunk, so she might have done something stupid. She said that she only recognised that she was pregnant when [Mr A] returned to Vietnam.
The Tribunal told the review applicant that it found it curious that she would have made these claims when she had not previously expressed any equivocation. The review applicant told it that because [Mr A] has always been the visa applicant’s father, she did not want him to know that she did something stupid in the past that might have a psychological effect. The Tribunal again put to her its concerns that she did not say something about this earlier or otherwise express doubt but maintained that she had had no other sexual partner during the period. The review applicant replied that [Mr A] accepted that the visa applicant was his child.
The Tribunal’s findings
The Tribunal has considered the information in front of it, including written documents, submissions and the review applicant’s testimony at hearing. It accepts that the review applicant is the visa applicant’s mother. This is not in issue. It accepts that she is someone who can lawfully determine where the visa applicant is to live. It accepts that, by applying for the present visa, she consents to the grant of the visa.
The Tribunal now considers whether there is any other person who can lawfully determine where the visa applicant is to live and, if so, whether that person consents to the grant of the visa. It has firstly considered whether the review applicant’s husband at the time of the birth of the visa applicant, [Mr A], is such a person. In a Form 1229 “Consent to grant an Australian visa to a child under the age of 18 years” dated 30 January 2020, [Mr A] declared himself as someone with parental responsibility.
The Tribunal has considered the visa applicant’s birth certificate dated [July Year 2] issued by the People’s Committee of [a named district] in Vietnam that names [Mr A] as the visa applicant’s father. It has also considered that [Mr A] was the husband of the review applicant at the time that the visa applicant was born. In the normal course of events, these pieces of information would be accorded substantial weight as being proof of [Mr A] being the visa applicant’s father in the following ways.
The Tribunal notes that it is not bound by technicalities, legal forms or rules of evidence,[1] and it is inappropriate for it to apply curial devices such as presumptions of law or fact.[2] However, it accepts that it may be appropriate to consider, but not strictly apply, certain presumptions of parentage when considering whether [Mr A] can be considered as the visa applicant’s parent and therefore as someone who has parental responsibility.
[1] Migration Act, s.353(a).
[2] A v MIMA (1999) 53 ALD 545, [1999] FCA 116, [41].
Under s.61B of the Family Law Act 1975 (Cth), parental responsibility, in relation to a child, means:
All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
In this instance, parental responsibility would include the authority to determine where the visa applicant is to live.
The Tribunal has considered the following two presumptions of parentage:
·The presumption of parentage arising from marriage under s.69P of the Family Law Act 1975 – based on the fact of the review applicant being married to [Mr A] at the time of the birth.
·The presumption of parentage arising from registration of birth under s.69R – based on the visa applicant’s birth certificate.
However, the Tribunal has considered other information that casts major doubt on [Mr A]’s parentage. Chief among this information are movement records that show that [Mr A] was in Australia up until he travelled to Vietnam on [date] November [Year 1]. In the refusal decision, the delegate gave a “conception period estimate[ ]” of between [date] September and [date] October [Year 1] based on information previously submitted to the Department showing that the review applicant carried the visa applicant to full term. The Tribunal notes that the review applicant has not challenged the delegate’s finding that she carried the visa applicant to full term, and it accepts based on this that the review applicant carried the visa applicant to full term.
While no source was given for the delegate’s estimate of the conception period, the Tribunal has consulted other open-source materials that indicate that conception almost certainly would have taken place during the period of time given by the delegate. In Mosby’s Pocket Dictionary or Medicine, Nursing & Health Professions, it is stated that “[p]regnancy lasts approximately 266 days (38 weeks) from the day of fertilization, but it is clinically considered to last 280 days from the first day of the last menstrual period”.[3] Based on the visa applicant’s birth date of [date] July [Year 2], the conception date according to this calculation would be [date] October [Year 1], meaning that the sexual intercourse that led to conception would have occurred at or just before this date. It notes that this date falls almost in the middle of the period given by the delegate. While the Tribunal accepts that the date of conception depends on factors such as when a woman experiences the first day of her last menstrual period, it finds it utterly implausible that the visa applicant would have been conceived one-and-a-half months after the estimated date of conception given by the open source consulted.
[3] Mosby’s Pocket Dictionary of Medicine, Nursing & Health Professions (6^th ed, 2010) ‘pregnancy’.
The Tribunal accords substantial adverse weight to information showing that it would have been implausible for [Mr A] to have been involved in the visa applicant’s conception. It finds that this information outweighs the weight that would ordinarily be given to information that would tend to show that he is the visa applicant’s father – being the birth certificate listing him as the visa applicant’s father and the fact of him being married to the review applicant at the time of the visa applicant’s birth. It finds that these pieces of information are not probative of [Mr A] being the visa applicant’s father. To the extent that the presumptions of parentage may be considered by the Tribunal to ascertain whether [Mr A] is a parent of the visa applicant, they are firmly rebutted by this countervailing information.
Based on the above information and findings, the Tribunal does not accept the claims made by the review applicant that [Mr A] is the parent of the visa applicant and therefore someone who can lawfully determine where the visa applicant is to live. For the same reasons, it does not accept the submissions made on the review applicant’s behalf, including in the letter dated 8 March 2024 from her representative, to the effect that [Mr A] should be considered as the visa applicant’s parent.
As the Tribunal has found that [Mr A] is not a person who can lawfully determine where the visa applicant is to live, it must consider whether there is another such person and whether this person has consented to the grant of the visa.

The review applicant has not identified any specific person other than [Mr A] as being the visa applicant’s father, either before or at hearing. In the submissions letter submitted on 29 October 2020, the visa applicant’s previous representative wrote that the visa applicant was conceived in November [Year 1] while [Mr A] was in Vietnam. In the later submissions letter dated 8 March 2024, the review applicant’s representative did not engage directly with the issue of [Mr A]’s biological parentage, but instead referred to “the Department’s concerns regarding the biological parentage”. The Tribunal has not received any written information authored by the review applicant herself.
The Tribunal finds that the review applicant’s testimony at hearing about the visa applicant’s paternity was vague and, at times, confusing. She maintained that [Mr A] was the visa applicant’s biological father, yet elsewhere said that if she was forced to say who the visa applicant’s father was, then she did not know where he was. Later in the hearing, she denied having sex with anyone other than [Mr A] during September and October [Year 1], although this denial was given straight after she stated that she did not know what sexual partners she had during the September/October [Year 1] period.
The Tribunal also finds that the review applicant had shifted her testimony during questioning. Specifically, it finds it concerning that she expressed equivocation about the paternity of the visa applicant – having testified at hearing that if something happened to her during a trip or a party, she would not know who that person was – after having earlier expressed no such equivocation. It finds that, in doing so, the review applicant lacks credibility on the issue of the visa applicant’s paternity.
Furthermore, while the Tribunal notes the review applicant’s testimony, it also notes that she has not identified in that testimony any particulars of any incident where she might have engaged in sexual relations that led to the conception of the visa applicant. If she did do something “stupid” during a time when she was drunk, then the Tribunal would have expected her to be able to at least remember that she drank to the point of unconsciousness even if she did not remember what happened during this period of unconsciousness. The review applicant’s testimony is speculative and offers no information of sufficient probative value that would form the basis of a finding that the visa applicant’s conception was the product of a random sexual encounter in which the biological father cannot be found.
In these circumstances, and noting the adverse credibility finding it has made above, the Tribunal considers that it is open to it to find that the review applicant has been evasive in providing evidence about the true identity of the visa applicant’s biological father. As a result, it is not satisfied that the visa applicant’s biological father is unable to be found.
Based on the findings made above, the Tribunal is not satisfied that each person who can lawfully determine where the applicant is to live consents to the grant of the visa.
As a result, the Tribunal finds that the visa applicant does not meet Item 4017(b).
As the visa applicant is unable to meet any of the alternative requirements under PIC 4017, she does not meet that criterion in its entirety.
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
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
David Crawshay
Member