Duong (Migration)

[2020] AATA 558

Duong (Migration) [2020] AATA 558 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thao Nghi Duong

CASE NUMBER:  1802002

HOME AFFAIRS REFERENCE(S):          CLF2016/10916

MEMBER:Helena Claringbold

DATE:24 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl.836.212 of Schedule 2 to the Regulations.

Statement made on 24 February 2020 at 7:18am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor a relative of the applicant – sponsor’s birth certificate lost – birth certificate provided with previous visa application – authenticity of other Vietnamese documents –  DNA tests support relationship – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 359AA

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cll 836.111, 836.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 18 February 2016, Ms Thi Thao Nghi Duong, the applicant, applied for an Other Family (Residence) (Class BU) visa. The application was made on the basis that the applicant is providing assistance to Ms Thi Hong Van Tran, the ‘Australian relative’ sponsor, to care for Master Kevin Tran, who is the person with the medical condition.

2. On 18 January 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the sponsor is a relative of the applicant. As a result the delegate found that the applicant did not meet cl.836.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 25 January 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa.

4. On 18 November 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the Australian sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether the ‘Australian relative’ is a relative of the applicant.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1988 in Ho Chi Minh City, Vietnam. Her parents and one sibling live in Vietnam. On 15 January 2015, she married Mr Huu Phu Le. On 8 June 2015, Mr Le and the applicant divorced. There are no children from this relationship.  On 9 November 2008, the applicant entered Australia as the holder of a student visa.  She resided with the sponsor and the sponsor’s family until 28 February 2012 when she returned to Vietnam.  On 15 December 2015, the applicant returned to Australia. She continues to reside with the sponsor and the sponsor’s family. The applicant has since departed Australia on two occasions in August 2016 and October 2017.

9. The ‘Australian relative’ sponsor was born in 1975 in Saigon, Vietnam. She has two siblings who reside in Australia. Her remaining four siblings live in the United States of America, Japan and Vietnam. On 15 February 1998, she entered Australia as the holder of a tourist visa. In 2000, she commenced a relationship with Mr Ngoc Khoa Tran. There are two children from this relationship including Master Kevin Tran, who is the person with the medical condition. On 12 August  2003, she became an Australian citizen by grant. The sponsor’s partner has three siblings, one of whom resides in Australia while the remaining two reside in Vietnam.

   Is the ‘Australian relative’ a relative of the applicant?

10. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is providing assistance to the resident, Ms Thi Hong Van Tran, to care for the person with the medical condition, Master Kevin Tran.

11. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

12. Regulation 1.03 defines relative as:

    …

    (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

13. In the present case the ‘Australian relative’ sponsor Ms Thi Hong Van Tran is an Australian citizen.  Ms Thi Thao Nghi Duong, the applicant claims that Ms Thi Hong Van Tran is her aunt.

14. In support of the claimed relationship the applicant provided the following:

    ·A statutory declaration dated 30 January 2016 from the ‘Australian relative’ sponsor, Ms Thi Hong Van Tran who stated that her birth certificate was lost a long time ago. She went on to give her name and the name of her mother Ms Phan Thi Mau and father, Mr Tran Van Thang.

    ·Statutory declaration dated June and September 2016 and January 2017 from the ‘Australian relative’ sponsor  Ms Thi Hong Van Tran, who stated the following:  MsTran Thi Ngoc Bich is her elder sister and the applicant is Ms Tran Thi Ngoc Bich’s daughter. In December 1999, she entered Australia as the holder of a Prospective marriage visa sponsored by her ex-husband.  In the application for the prospective marriage visa she provided her birth certificate and declared all her siblings including the visa applicant’s mother.  Her other older sister arrived in Australia as the holder of a prospective visa.  She declared all her siblings, including the ‘Australian relative’ sponsor and the visa applicant’s mother in her visa application. She does not have any other documents to prove the biological relationship between the applicant’s mother and herself. She wants to sponsor the applicant to help her care for her son who has Autism Spectrum Disorder and Intellectual Delay.  The applicant has lived with her for over three years while studying and has been the main carer of her son since December 2015.

    ·A statutory declaration dated June 2016 from the applicant who stated that her mother is the sister of the ‘Australian relative’ sponsor. She goes on to provide details about the person needing the care.

    ·A statement from her migration agent dated August 2019 who stated that, as the birth certificate has been provided for the Ms Thi Hong Van Tran and the DNA results do not exclude that the applicant is the niece of Ms Thi Hong Van Tran cl.836.221 has been met. He requested that the Tribunal make a decision in the applicant’s favour without having a Tribunal hearing.

    ·A letter from a DNA provider dated 20 August 2019.  The information in the letter is that (the Australian relative), ‘Thi Hong Van Tran and (the applicant), Thi Thao Nghi Duong are approximately 5 times more likely to have DNA profiles observed if they are related as aunt and niece compared to unrelated individuals’.

    ‘Based on this statistical figure, there is limited support for the proposition that (the Australian relative) Thi Hong Van Tran and (the applicant) Thi Thao Nghi Duong are related as aunt/niece compared to unrelated individuals.’

    ‘This kinship statistical result is low and doesn’t provide strong support for an aunt /niece relationship, however by the same token a relationship on this result cannot be excluded’.

    ‘The statistical likelihood may be improved by testing additional individuals which may include but not limited to:

    ·The biological mother of Thi Thao Nghi Duong

    ·Other relatives of the child’s parent being in a common link to (the Australian relative) Thi Hong Van Tran.

    ·   A translated copy of a birth certificate (a duplicate) for the applicant. This provides the following information: issued by the Socialist Republic of Vietnam, People’s Committee. Commune/Ward: Dong Hung Thuan. District: Hoc Mon. Province/City:  Ho Chi Ming. Registered on 16 November 1988. Date of Birth: 6 November 1988. Mother Tran Thi Ngoc Bich and father Duong Dinh Lap.

    ·   A translated copy of an extract of a birth certificate (copy) for the ‘Australian relative’. This provides the following information: issued by the Socialist Republic of Vietnam. Ho Chi Minh City, District 12, Peoples Committee of Dong Hung Thuan Ward. Place of Register Peoples Committee of Dong Hung Thuan Commune, Hoc Mon HCMC NO. 645. Registered on 9 November 1978. Date of Birth 28 July 1975.  Mother Phan Thi Mau and father Tran Van Thang. 

    ·   A translated copy of a duplicate of a birth certificate for the applicant’s mother/ ‘Australian relative’s sister. This provides the following information: issued by ‘Republic of Vietnam’ Province: Quang Nam. Urban: Da Nang. District: Dong Giang. Commune: An Hai. ‘Made’ on 7 December 1956. Copied from the original registrar 16 November 1962.

15. The Tribunal put information to the applicant under s.359AA of the Act.  The applicant was told the relevance and consequence of the information.  She was invited to comment on or respond to the information and told she could seek additional time to do so.  The information is as follows:

    Information provided in the Department of Foreign Affairs and Trade, Vietnam Country Report 2017 is that document fraud is common in Vietnam. [1]

    The applicant provided to the Tribunal birth documents for herself, the Australian relative sponsor and for her mother.

    The ‘Australian relative’ and applicant’s birth documents record that they have been issued by the same ward.  However the format of the documents is different. The Australian relative sponsor’s birth document does not record a Peoples Committee and does not have an emblem or crest at the top of the original document. The visa applicant’s birth document record recorded that it was issued by the Peoples Committee.  It has crest or emblem at the top of the document. 

    The birth document for the applicant’s mother is in a different format to the other birth documents. The stamp on the original document does not appear to relate to the document and there is overprinting on some of the document.

    Other information on the document is that ‘this certificate is made at An Hai, Dong Giang, DN Urban , on the seventh day of December nineteen fifty-six’ and then ‘Copies from the original registrar on An Hai, date Nov 16 1962’.

    Other information relates to the inconclusive evidence resulting from the DNA testing between the Australian relative sponsor and the applicant.

    [1] >

    The applicant responded at the Tribunal hearing and stated the following: the formatting of the birth documents for the Australian relative, the applicant and the applicant’s mother are different because of the times they were issued. Prior to 1975 the Hoc Mon district was one district but post 1975 it was split into two districts. The birth document for the applicant’s mother was (probably) produced by typewriter or an old method and this why it appears with over printing. The Tribunal has not been provided any independent information to support the claims made by the applicant about the birth documents including information about when Hoc Mon changed composition.  The Tribunal does not accept the applicant’s explanation about the birth documents.

16. The applicant told the Tribunal she has lived with the Australian relative sponsor since December 2015 and prior to this time when she studied in Australia. She takes care of the Australian relative sponsor’s two children, does the shopping and cooks for the family.  She is provided with accommodation and food and when she wants anything she asks the Australian relative sponsor.  The Australian relative sponsor told the Tribunal that she has been a single mother for the past three years. She works hard to support the family and needs the applicant to help her care for her son.

17. The Tribunal discussed with the applicant the inconclusive DNA information about the relationship between herself and the ‘Australian relative’.  It invited the applicant to provided further DNA to support her claimed relationship with the ‘Australian relative’ to include 1) DNA between the ‘Australian relative’ and the applicant’s mother and 2) DNA between the applicant and her mother.  It also requested that the Ho Khau (household Registration) be provided for the applicant’s grandparents, the Australian relative sponsor and the visa applicant’s mother. The applicant told the Tribunal that she would provide further DNA, the Ho Khau and clearer birth documents.

18. On 17 January 2020, the Tribunal received a DNA Kindship Analysis Report dated 15 January 2020, for Thi Hong Van Tran, the ‘Australian relative’ sponsor, Thi Thao Nghi Duong the applicant and Thi Ngoc Bich Tran, the applicant’s mother and sponsor’s sister.   The report demonstrates the following:

    ·The DNA results support Thi Ngoc Bic Tran being the biological mother of Thi Thao Nghi Duong; and

    ·The DNA results provide very strong support that Thi Ngoc Bic Tran and Thi Ngoc Bich Tran are related as full siblings compared to unrelated individuals.

19. The Tribunal is satisfied that the DNA maternity and sibling analysis demonstrates a niece and aunt relationship between the ‘Australian relative’ sponsor and the applicant. The Tribunal is satisfied that the applicant is a relative of the resident as defined. The Tribunal is satisfied that at the time of application, the applicant claims to assist the relative in the care of Master Kevin Tran, who is a member of the family unit of the sponsor.

20. Therefore the applicant meets cl.832.212 of Schedule 2 to the Regulations.

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

22. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl.836.212 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member