Le (Migration)

[2017] AATA 603

Le (Migration) [2017] AATA 603 (5 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Diem Thuy Le

VISA APPLICANT:  Miss Khanh Ly Phan

CASE NUMBER:  1620020

DIBP REFERENCE(S):  OSF2014/026954

MEMBER:Lisa Lo Piccolo

DATE:5 April 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.226 of Schedule 2 to the Regulations

Statement made on 05 April 2017 at 11:34am

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – cl 101.226 – Public Interest Criterion 4017 – Consent for child to leave Vietnam – Review applicant claims sole custody – Best interests of the applicant – Father’s letter of consent – Father living outside Vietnam

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 101.226, r 1.03, r 1.05A

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 Immigration on 28 October 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 30 June 2014. The delegate refused to grant the visa on the basis that cl.101.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that public interest criterion 4017 was met. The delegate was not satisfied that each person who can lawfully determine where the visa applicant is to live consented to the grant of the visa.  In particular, the delegate had concerns as to whether the biological father, Mr Phan Ngoc Khan had given his consent to the visa applicant’s migration to Australia.

3. The review applicant appeared before the Tribunal on 9 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Phan Ngoc Khan. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4.The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

RELEVANT LAW

1. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative)[1]in the Regulations.  The only subclass in respect of which any claims have been advanced is Subclass 101 (Child).

   [1] Item 1108 of Schedule 1 to the Regulations

2. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations. The visa applicant must satisfy certain criteria at the time of application and the time of decision. The primary criteria require that at the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen: cl.101.211(1)(a).

3. The primary criteria to be satisfied at the time of decision includes a requirement that:

   ·if the visa applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the visa applicant: cl.101.226

4. Public interest criterion 4017 states 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.

1. The issue in the present case is whether public interest criterion 4017 is satisfied in relation to the visa applicant.

FINDINGS AND REASONS

1. The visa application was made on the basis that the visa applicant is the dependent child of the review applicant, who is the visa applicant’s mother. The review applicant contended that the visa application complied with 4017(b) or 4017(a). The Tribunal considered each of these contentions.

Each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

1. The review applicant contends that cl.4017 is met in this case.  Firstly, Ms Zhang contends that she has sole custody of the child under an order made by the Vietnamese court on 7 September 2009, although Mr Phan has the right to take care of and educate the child.  Seconly, the review applicant contends that she and Mr Phan are the biological parents of Yuke and they can determine where the child lives and they both consent to the grant of the visa.

2. The applicant submitted two letters of consent from the father.  Both letters were dated Mr dated 30 May 2014 and attached a certified copy of Mr Phan’s  Vietnamese ID card. The delegate expressed concern that although the People’s Committee of Long Dien Village, Dong Hai District, Bac Lieu Province had certified that Mr Phan’s report is true and correct, they have not certified that they witnessed his signature.  Despite numerous attempts over a one year period to obtain a properly certified and witnessed consent letter, this letter was not forthcoming.

3. The review applicant submitted a further letter of consent in support of the review application.  That letter of consent was dated 6 March 2017.  At the hearing, the Tribunal heard evidence from the review applicant and Mr Phan.  Mr Phan’s evidence was given by telephone and he told the Tribunal he was back living in Vietnam.  He gave evidence that he consents to his daughter migrating to Australia.  He told the Tribunal that he was living outside Vietnam and had been contacted by the sister of the review applicant regarding this issue.  He said that he was unable to attend to the matters at the time he had been asked because he was in the United Kingdom.  He said his ex-sister in law had prepared all of the documents and he signed the documents when he was back in Vietnam in 2014.  He said he has since signed the documents confirming that he has given his unequivocal consent for his daughter to be granted the visa.

4. The Tribunal raised concerns with the review applicant and her representative that the new documents submitted did not address the delegate’s concerns to the satisfaction of the Tribunal.  The representative sought additional time to obtain documents which address each of the concerns raised by the delegate and the Tribunal.

5. In a letter dated 23 March 2017, the representative provided the Tribunal with four documents: namely, a petition of confirmation by Mr Phan, a copy of his Vietnamese Passport, a copy of Mr Phan’s birth certificate and a copy of the marriage certificate of Mr Phan and the review applicant.  The representative submitted that the signature of Mr Phan – being the father of the visa applicant, was certified and witnessed by the hamlet chief.  A translated copy of these documents was provided to the Tribunal on 27 March 2017.

6. The Tribunal finds based on the certified birth certificate provided and the oral evidence of the review applicant and Mr Phan, that the review applicant and Mr Phan are the biological parents of the visa applicant who was born on 29 April 2005. Further the Tribunal finds that the review applicant as the sponsor for the visa applicant consents to the grant of a visa to her to live in Australia.

7. Based on the oral and documentary evidence, particularly the petition of confirmation dated 15 March 2017 coupled with Mr Phan’s oral evidence, the Tribunal is also satisfied that Mr Phan consents to the grant of the visa to visa applicant.

8. Therefore the Tribunal is satisfied that each person who can lawfully determine where the applicant is to live consents to the grant of the visa, as required by PIC 4017(b). Therefore the Tribunal is satisfied that the requirement in PIC 4017 is met.

Public Interest Criterion 4018

1. Cl.101.226 also requires that public interest criterion 4018 is satisfied in relation to the applicant. Public Interest Criterion 4018 states:

   The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. 

2. There is no information before the Tribunal that demonstrates that there is any compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant. Therefore the Tribunal is satisfied that the requirement in public interest criterion 4018 is met.

CONCLUSIONS

1. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl.101.226.

DECISION

1. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

   · cl.101.226 of Schedule 2 to the Regulations.

Lisa Lo Piccolo

Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.03     Definitions

…

dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a)has not turned 18; or

(b)has turned 18 and:

(i)is dependent on that person; or

(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

1.05A Dependent

(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

(a)at the time when it is necessary to establish whether the first person is dependent on the other person:

(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

…