Lim (Migration)

[2023] AATA 1678

Lim (Migration) [2023] AATA 1678 (9 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Bouy Lim

VISA APPLICANTS:  Mr Pheng Lim
Mr Long Lim
Miss Huoy Lim

REPRESENTATIVE:  Mrs Deborah Masih (MARN: 1801412)

CASE NUMBER:  2103040

HOME AFFAIRS REFERENCE(S):          2018029828

MEMBER:Kate Millar

DATE:9 June 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 09 June 2023 at 11:38am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – whereabouts of the applicants’ mother – providing false or misleading information – home country permits the removal of the applicant – father’s right of access to the children – father sentenced to life imprisonment – social media contact with mother – formal adoption reasonably practicable – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 117.211, 117.221, 117.223, 117.227; Schedule 4, Public Interest Criterion 4020; rr 1.04, 1.14

CASES

Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are citizens of Cambodia.  They applied for orphan relative visas on the basis that their father is in jail and their mother’s whereabouts is unknown.  They are sponsored by Miss Bouy Lim, their paternal aunt. 

2. A delegate of the Minster refused their applications because the delegate found their mother, Ms Khet Bopha, was active on Facebook and was a “friend” of Mr Pheng Lim, the first applicant.  As a result, the delegate concluded that the whereabouts of the applicants’ mother was not unknown.  The delegate also found that this information together with other information in Mr Pheng Lim’s application resulted in a finding that he had provided false and misleading information as a part of his visa application.

3. Miss Lim appeared before the Tribunal on 15 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants.  The Tribunal requested that the applicant’s grandmother attend to give evidence, however she did not attend due to reported hearing issues and general ill-health.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.  Miss Lim was represented in relation to the review.

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

   LEGISLATION

5. The legislation that applies to this matter is contained in the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (the Regulations).

6. The visa applicants applied for Class AH visas on 12 December 2018. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

7. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), and each of the applicants must meet the primary criteria for the visa.

8. The primary criteria include cl.117.211 and cl.117.223 of Schedule 2 of the Regulations.

9. Clause 117.211 requires that the applicant to be an orphan relative of an Australian relative of the applicant, or is not an orphan relative only because the applicant has been adopted by the Australian relative.

10. The term “orphan relative” is defined in r.1.14 of the Regulations as follows:

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)      the applicant:

    (i)  has not turned 18; and

    (ii)  does not have a spouse or de facto partner; and

    (iii)  is a relative of that other person; and

    (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and 

    (c)  there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

11. A person is considered to be adopted in the circumstances set out in r.1.04 of the Regulations.  This includes where formal arrangements are made in accordance with the law of another country to be recognised as a parent of the adoptee, or where formal adoption is not available or was not reasonably practicable and arrangements were made in accordance with the usual practice or recognised custom in that culture. 

12. Clause 117.223 requires, among other things, that the applicant meets Public Interest Criterion 4020 (‘PIC 4020’).  As it applies in this case, PIC4020(1) requires that there is no evidence that the applicant has given, or caused to be given information that is false or misleading in a material particular in relation to the application for a visa.

13. Information that is false or misleading in a material particular is defined as information that is: 

    (a)      false or misleading at the time it is given; and

    (b)  relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

14. Under PIC4020(4), the requirements of PIC4020(1) can be waived if the Tribunal is satisfied that:

    (a)      compelling circumstances that affect the interests of Australia; or

    (b)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

15. The delegate refused to grant the visas on 4 February 2021. The delegate found Mr Pheng Lim did not meet cl 117.211 and cl.117.223 of Schedule 2 to the Regulations. The applications of Mr Long Lim and Miss Huoy Lim were refused as it was found they did not meet the requirements of cl.117.211 of Schedule 2 of the Regulations.

16. In the course of the hearing, it was raised with Miss Lim and her representative that the Tribunal has concerns about whether the applicants meet cl.117.227 of Schedule 2 of the Regulations. This requires the applicants to meet public interest criterion 4017. This in turn requires that the Minister, and the Tribunal in the place of the Minister, to be satisfied that the law of the applicant’s home country permits the removal of the applicant, or each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order in force in relation to the applicant. As this was a new issue that was not addressed in the decision of the delegate, Miss Lim was provided time after the hearing to provide further submissions on this issue.

    INFORMATION UNDER S 359AA OF THE ACT

17. In the course of the hearing, Miss Lim was provided with further information under s 359AA of the Act.

18. The first piece of information was that Miss Lim’s statement dated 10 October 2019 was inconsistent with information from the interview between Pheng and the Department on 27 May 2019 and her oral evidence at hearing.  In Miss Lim’s statement dated 10 October 2019 she said the applicant’s mother had disappeared without a trace.  In oral evidence at the hearing, she said she was aware after the interview with Pheng that he was friends with his mother on Facebook.  The interview was before the statement was provided to the Department, and Miss Lim was advised this was relevant to her credibility as according to her evidence, the statement she made was not true.

19. The second piece of information was from the interview between Pheng and Department of Immigration.  The interview notes say Pheng said he has not had any contact with his mother including phone calls, exchanging written contact or photographs and the has no idea where his mother is.  He later acknowledged he was friends with his mother on Facebook.  Miss Lim was advised that if the Tribunal relied on that information, it would find that false or misleading information had been provided.  If it found false or misleading information has been provided, the Tribunal would find that PIC4020 is not met. 

20. In response Miss Lim said the Department accused Pheng of having contact with his mother on Facebook, but the other two children should be considered separately.   

    PUBLIC INTEREST CRITERION 4017

21. It was raised with Miss Lim and her representative during the hearing that the Tribunal was concerned about the application of PIC 4017. 

22. The Phnom Phenh Capital Court of First Instance divorce documents dated 24 February 2014 state that Khet Bopha has parental authority over the applicants, and that Dree Lim has a right of access to the children and the duty to bear necessary costs for the children.

23. The Tribunal was concerned that it was represented in a form provided to the Department that the father and grandmother of the applicants can lawfully determine where the applicants are to live when the order provides that the mother has parental authority. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Is the visa applicant an orphan relative of an Australian relative?

24. Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl 117.211(b)).

25. The visa applicants must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221.

26. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. In particular, it is in dispute that the applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

    No parental care – reg 1.14(b)

27. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

28. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

29. The applicants claim their father is in prison.  They provided a translated “Application for final judgement”.  This states Mr Lim was sentenced to imprisonment for 7 years on 30 August 2017.  It also refers to a previous sentence of life imprisonment.  The document is incomplete and stated both that he had not had previous convictions, and that he had a life sentence. 

30. After the hearing Miss Lim provided another document that provides a more comprehensive set of sentencing remarks.  The Tribunal is satisfied Dree Lim has been sentenced to life imprisonment and is unable to care for the children due to a permanent incapacity to do so. 

31. The visa applicants claim their mother’s whereabouts is unknown. 

32. In Houy Lim’s application states “since the mother disappeared the father got sole rights but he was always in prison since 2011 and has now been sentenced to life imprisonment without parole, so could not look after and care for his children.  It is claimed that Hour Siv has been caring for the children since their mother disappeared in 2013 and since their father was arrested in 2011, 2012, 2013, 2014, 2015 and 2016.”

33. The residence book of their grandmother, Hour Siv dated 22 April 2013 lists the applicants as members of her household.  

34. The applicants provided a divorce ruling dated 24 February 2014. This states the petition for divorce was filed by Khet Bopha, and the parents had agreed to divorce on a voluntary basis and to allow Khet Bopha to take custody of the children.  It states their mother Khet Bopha has parental authority over the children. 

35. In a statement dated 25 October 2018, Miss Lim states that she, her sister May Lim and her mother Hour Siv have cared for the applicants since they were very young.  Their father has been in trouble with the law and their mother “has always been away making a living until she has disappeared one day and never came back to pick up the kids.”

36. In Miss Lim’s statement it is claimed at various points that “their mum has disappeared” and that she did not return to take the care of the children.  They had the children registered in their family book as members of the family unit, “technically adopting them” and they have officially lived as members of her family unit since 2013.  It is also stated “the whereabouts of their mother is unknown as she has mysteriously disappeared”.

37. In a statement dated 5 February 2019, Miss Lim states she had a memory lapse and Khet Bopha went missing in 2014 after her divorce proceedings were finalised, and not in 2013.

38. Miss Lim also states “[o]ne day she came to our home to say goodbye to us and to the kids that she was going to do business or find work and she just went.  Since then, we haven’t heard from her or about her.  We went around asking friends and her relatives but they seem to know nothing about her whereabouts.  We got accustomed to not seeing her visit the kids so we didn’t report her missing to the police because we held the hope that she is still somewhere, but until today we never heard anything from her.”  It is stated “We don’t know her whereabouts, what happened to her or if she is dead or alive”.  The statement goes on to say “their mum has disappeared without a trace for a very long time..”.

39. It was acknowledged that Khet Bopha is on Facebook and was friends with Pheng.  At the hearing Miss Lim, her sister Ms May Lim and Pheng all said they had not asked the applicant’s mother where she is. Miss Lim said she is on Facebook but has not contacted Khet because she doesn’t really care about the children and Miss Lim does not want any contact with her.  On being asked if it would be reasonable to ask where Khet is, Miss Lim said she is not interested in where she is because she left her own children.   Miss Lim and Miss May Lim have not asked Khet’s views on bringing the children to Australia, despite her having been given parental authority by a Court in Cambodia.

40. On being asked what efforts she had made to locate Khet Bopha, Miss Lim said they went to look for her at the border between Cambodia and Thailand.  On being asked why they went to look for her, but did not ask her through Facebook where she was, Miss Lim said this was because Khet had been gone for a long time, and Miss Lim left Cambodia to come to Australia in 2015.

41. The Tribunal finds Khet Bopha is the applicants’ mother.  It finds that she has a presence on Facebook, with the most recent post being July 2021.  It does not consider the applicants and Miss Lim can claim her whereabouts are unknown by merely failing to ask her where she is when there is an ability to contact her. 

42. Pheng gave oral evidence to the Tribunal.  He is now 21 years old.  He is friends with his mother and his mother’s boyfriend on Facebook but did not know how he came to be friends with them.  He was asked if he had to consent to being the person as a friend to be friends on Facebook, and he said he could not recall.  On being asked if he agreed to a request to be friends on Facebook he said yes.  Pheng said he has not asked his mother where she is because she left him when he was young and never cared or had an interest in him.  He was asked why she was friends with him on Facebook if she had no interest in him, and he said he did not know.  He said being friends on Facebook was not enough to say he had contact with her. 

43. The submissions of the representative include that Pheng is also friends with his mother’s current partner on Facebook.  It is submitted that having his mother and her partner on Facebook does not mean he knows her whereabouts or has regular contact with her.  It is submitted that it is possible tags are embedded in the photographs or that the photograph states the location of the person but does not mean that location is current. 

44. Khet Bopha is a ‘friend’ of her son on Facebook and there is an ability to contact her to ask where she is or discover her location.  No-one has asked her where she is.  The Tribunal does not consider a person’s whereabouts can be unknown for the purposes of the legislation if an applicant is in contact with the person and declines to ask where they are.   There is no evidence that Miss Lim has refused to disclose her whereabouts. 

45. The Tribunal is not satisfied that Khet Bopha’s whereabouts is unknown. As a result, the applicants do not meet r.1.14(b) of the Regulations at the time of the application or at the time of this decision and are not orphan relatives as defined in the Regulations.

46. The applicants therefore do not meet the requirement in cl.117.211(a) of Schedule 2 of the Regulations.

47. Clause 117.211(b) requires that an applicant is not an orphan relative because the applicant has been adopted by the Australia relative.  While in her statement of 25 October 2018, Miss Lim states that “I and my family had registered the 3 children in my Family Book as members of the family unit, technically adopting them, and they have officially lived as members of my family since 2013”, Miss Lim said that she said this because they were financially dependent on her, but she had not formally adopted the applicants and they were listed on Hour Siv’s family book.  They were not stated to be members of Miss Lim’s family unit on her visa application to come to Australia in August 2015.  The Tribunal is not satisfied that formal adoption was not available or was not reasonably practicable in the circumstances. 

48. The Tribunal finds that the applicants have not been adopted by Miss Lim as defined in r.1.04 and that cl.117.211(b) is not met. 

49. As the applicants do not meet cl.117.211 of the Regulations, the decision under review must be affirmed.  It is unnecessary to consider whether the applicants meet PIC4020 or PIC4017.

    DECISION

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

    Kate Millar
    Senior Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)the applicant:

    (i)has not turned 18; and

    (ii)does not have a spouse or de facto partner; and

    (iii)is a relative of that other person; and

    (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.