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

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.
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.
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.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
LEGISLATION
The legislation that applies to this matter is contained in the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (the Regulations).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lim (Migration)

Details

AGLC: Lim (Migration) [2023] AATA 1678
Case: [2023] AATA 1678
Decision Date: 9 June 2023

CaseChat Overview and Summary

This matter concerned an appeal by visa applicants seeking a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicants were seeking to be recognised as orphan relatives of an Australian relative. The primary dispute revolved around whether the applicants met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994, specifically concerning the whereabouts and capacity of their parents to care for them. The decision was made by Senior Member Kate Millar of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicants satisfied the criteria for being an "orphan relative" under regulation 1.14(b). This required the Tribunal to determine if the applicants could not be cared for by either parent because each parent was either dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered whether formal adoption by an Australian relative was reasonably practicable, although this became secondary to the primary orphan relative assessment.

The Tribunal found that while the applicants' father had been sentenced to life imprisonment, indicating permanent incapacity, their mother's whereabouts were not definitively unknown. A divorce ruling indicated that the mother had been granted parental authority over the children. This contradicted the claim that the applicants could not be cared for by either parent, as the mother retained parental authority. Consequently, the Tribunal concluded that the applicants did not meet the definition of an orphan relative under regulation 1.14(b).

As the applicants failed to satisfy the threshold criterion of being an orphan relative, the Tribunal affirmed the decision not to grant the visa. It was therefore unnecessary to consider other potential issues, such as the applicants meeting Public Interest Criteria 4020 or 4017.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEIs the visa applicant an orphan relative of an Australian relative? 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)). 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. ‘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) 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. 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. 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. 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. The visa applicants claim their mother’s whereabouts is unknown. 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.” The residence book of their grandmother, Hour Siv dated 22 April 2013 lists the applicants as members of her household. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Kate MillarSenior MemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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