Nguyen (Migration)

[2020] AATA 6059

Nguyen (Migration) [2020] AATA 6059 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Tri Nguyen

VISA APPLICANT:  Mr Hoang Khanh Tran

CASE NUMBER:  1904336

HOME AFFAIRS REFERENCE(S):          2013027153 OSF2013/027153

MEMBER:Russell Matheson

DATE:24 November 2020

PLACE OF DECISION:  Sydney

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:

·Public Interest Criterion 4004 for the purposes of cl.101.223 of Schedule 2 to the Regulations.

Statement made on 24 November 2020 at 3:40pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – applicant is now over the age of 18 years – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2, cls 101.223,101.226; PIC 4004, 4017

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 Home Affairs on 11 January 2019 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 for the visa on 30 August 2013. 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.226 and PIC 4017.

4. The delegate refused to grant the visa on the basis that cl.101.226 was not met because the visa applicant was not 18 years old at the time of application and the delegate was not satisfied that he was permitted by the laws of Vietnam to migrate to Australia, or that each person who could lawfully determine where he was to live consented to the grant of the visa, or that the grant of the visa would be consistent with any Australian child order in force in relation to him.

5. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it and determined not to invite the applicant to appear at a hearing pursuant to s.360(2)(a) of the Act.

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

   Background

7. The birth certificate of the visa applicant (the applicant), Hoang Khan Tran, dated 28 November 2002 (DF folio 19), lists the applicant’s parents as Mr Van Vinh Tran and Mrs Thi Tri Nguyen. Ms Nguyen is the sponsor of the child’s visa application.

8. The applicant was born on 3 November 2002 and was 10 years of age at time of lodgement, therefore PIC 4017 must be met.

9. At lodgement, a signed letter of consent from the applicant’s father was submitted, dated 3 December 2012, allowing the applicant to permanently migrate to Australia. While the document was confirmed by local authorities, they had not certified that they had witnessed the applicant’s fathers’ signature.

10. A request for additional evidence was sent by mail to the applicant via the sponsor on 25 September 2013, with the request including another letter of consent from the applicant’s father in which the local authority had certified that they witnessed the applicant’s father signing the document.

11. On 5 November 2013, a number of documents were received by the Department, including a copy of the same letter of consent from the applicant’s father that had been previously submitted on 3 December 2012, along with an untranslated copy of the fathers Vietnamese identity card.

12. On 19 November 2013, another letter of consent from the applicant’s father was received by the Department. This letter appears to be the same as the previous consent letters submitted as it was also dated 3 December 2012, however the previous signatures of the applicant’s father, the signature of the local authority representative and the local authority stamp had all been removed. On the letter of consent submitted, the father had re-signed the document and the local authority certified that the applicant’s father’s signature had been witnessed.

13. While a witnessed letter of consent was received by the Department in November 2013, the letter was dated 3 December 2012, and based on previous letters of consent submitted, it is clear that the applicant’s father did not sign the latest consent letter on the date listed and nor did the local authority witness the applicant’s father’s signature on that date. The Department gave this document little weight.

14. On 2 March 2018 and again on 27 March 2018, an email was sent to the sponsor requesting a number of updated documents including another appropriately witnessed letter of consent from the applicant’s father and a certified copy of his identity card. On 9 April 2018, an email was received from the applicant’s migration agent, in which he stated that some of the requested documents (which included the letter of consent and the identity card) would be provided shortly.

15. During this time, information became available to the Department indicating that there were some conflicting details regarding the identity of the applicant’s birth father. The sponsor was subsequently interviewed by a case officer on 5 June 2018 in order to provide the sponsor with an opportunity to respond to these concerns. Further to speaking with the sponsor, the case officer was satisfied that Mr Van Vinh Tran was the applicant’s birth father. Furthermore, the sponsor indicated that the applicant’s father was now residing overseas in the UK during the interview.

16. On 7 June 2018, an email was sent to the applicant’s recently appointed migration agent requesting Form 1229 which had been signed by both of the applicant’s parents, along with a copy of the non-migrating parent’s original passport or other official identity document with the non-migrating parent’s signature.

17. On 13 July 2018, as no further evidence had been received by the Department, another email was sent to the applicant’s migration agent to request the above-listed documents again.

18. On 27 July 2018, two copies of Form 1229 were received by the Department by email, one signed by the sponsor and the other signed by the applicant’s father. A scanned copy of the father’s Vietnamese driver’s licence was also attached. It is noted that this identity document does not include a signature of the applicant’s father.

19. On 15 October 2018, another request was emailed to the applicant’s migration agent requesting Form 1229 signed by the applicant's father, in addition to a copy of the applicant’s father's passport or other official identity document with the applicant’s father's signature.

20. An email was received from the migration agent on 19 October 2018, in which he stated that the requested documents had already been submitted on 27 July 2018. Copies of the same separately signed copies of Form 1229 were submitted, along with another copy of the applicant’s father’s unsigned Vietnamese driver’s licence.

21. A subsequent email was sent to the migration agent on the same day, acknowledging receipt of Form 1229 signed by the applicant's father. The email further clarified that a copy of the applicant’s father’s original passport or other official identity document which included his signature was still required as per the Department’s previous email requests.

22. As the requested documents had not yet been received by 6 December 2018, a further request was emailed to the migration agent on the same day. A further 28 days was given in order to submit the previously requested identity evidence for the applicant’s father bearing his signature. To date, nothing has been received by the Tribunal or Department.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether at the time of decision, the visa applicant satisfied cl.101.226, which in turn requires consideration of whether the requirements in Public Interest Criterion (PIC) 4017 and PIC 4004 are applicable, and if so, whether they are met.

24. Clause 101.226 provides:

    If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

25. PIC 4017 requires the following:

    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.

26. The Tribunal notes that the applicant was born on 3 November 2002 and is now over 18 years of age. There is no new evidence before the Tribunal as to the current circumstances of the visa applicant.

27. However, as the visa applicant is now over the age of 18 years, there is no requirement that PIC 4017 and 4018 are satisfied in relation to the applicant and cl.101.226 is not a relevant consideration at the time of this decision.

28. Clause101.223, among other things requires that the applicant satisfies PIC 4004. This criterion requires that the visa applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. On the basis of the available evidence, there is no indication this requirement is not met and accordingly cl.101.223 is met.

29. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

30. 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:

    ·Public Interest Criterion 4004 for the purposes of cl.101.223 of Schedule 2 to the Regulations.

    Russell Matheson
    Member