Phan (Migration)

[2021] AATA 5655

Phan (Migration) [2021] AATA 5655 (30 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Thuy Phan

VISA APPLICANT:  Mr Binh An Phan

CASE NUMBER:  1812924

HOME AFFAIRS REFERENCE(S):          2016038214

MEMBER:John Longo

DATE:30 November 2021

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 101.211 of Schedule 2 to the Regulations; and

·cl 101.221 of Schedule 2 to the Regulations.

Statement made on 30 November 2021 at 2:30pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – visa applicant’s age at time of application – date of birth – birth certificate – original documentation destroyed by flood – non-disclosure certificate – adverse information – child-parent relationship – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 375A, 376
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122

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 April 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Mr Binh An Phan, applied for the visa on 14 March 2016. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211.

4. The delegate refused to grant the visa on the basis that cl 101.211(1)(a) or cl 101.213(1)(c) was not met because they were not satisfied that the applicant was born on 10 September 1999 and was under 18 at time of lodgement as claimed.

5. The review applicant, Ms Thi Thuy Phan, appeared before the Tribunal on 21 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Phan and from Ms Linda Do. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant and visa applicant appeared again before the Tribunal on 19 July 2021 to give further evidence and present additional arguments in support of the application.

6. The Tribunal exercised its discretion to hold both hearings by video conference. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold these hearings by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the visa applicant is a dependent child of an Australian citizen or permanent visa holder.

   Dependent child criteria

10. The criterion in cl 101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

    Dependent child

11. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

12. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

    Delegate’s decision

13. In support of the application for the visa, Mr Phan supplied a birth certificate, registered on 15 January 2015, which stated his date of birth as 10 September 1999. The birth certificate stated his mother’s name but did not include his father’s name. Other documents were also provided in support of the application, including the Household Register of Van Ho Nguyen, Mr Phan’s identity card and passport.

14. When the Department was assessing the application, it was noted that Mr Phan had not provided any earlier identity documents, apart from his birth certificate, which was registered on 15 January 2015, some 15 years after his birth. The Department requested additional information, including: a copy of Mr Phan’s initial birth certificate, if available; certified copies of any household registrations books in which Mr Phan was previously listed; certified copies of Mr Phan’s primary and secondary school records; and Mr Phan’s hospital certificate.

15. As a result of this inconsistency, the Department conducted an interview with Ms Phan. When questioned on 18 January 2017, Ms Phan was asked if there was an initial birth certificate submitted and it was noted that she stated she had initially registered her son’s birth certificate when he was 3 months old but that it was damaged by flooding when he was a year old.  

16. The delegate also contacted the Registrar of the People's Committee of Phu Thuan Commune, Phu Vang, Thua Thien Hue, about the genuineness of the visa applicant’s birth certificate on 24 March 2017. The Registrar verified that the birth certificate was genuine and that they did not have a record of previous birth certificate registration because all of the records were destroyed by a storm and flooding in 1999 and as a result, they do not have any records from the 1998 and 1999 archives. They advised that the birth certificate could be re-registered by the applicant’s mother providing a written declaration in which she assured the local authorities that she supplied the correct date of birth for the applicant.

17. An invitation to comment was emailed to the applicant’s agent on 16 June 2017 stating:

    ·That the Department was not yet satisfied with the applicant’s identity as no identity documents issued prior to 15 January 2015 had been submitted;

    ·That a birth certificate is required in Vietnam in order to for a child to enrol in school and that, as no initial birth certificate had been submitted, nor any further requested evidence to verify the applicant’s date of birth prior to January 2015, concerns arise about the applicant’s actual date of birth and therefore his age at application;

    ·That the applicant could either provide comment on the evidence and/or information that is considered to be inadequate in nature in relation to his claimed identity or to alternatively submit the previously requested documents, including certified copies of any household registrations books in which the applicant was previously listed, certified copies of the applicant’s primary and secondary school records and the applicant’s hospital certificate.

18. On 1 November 2017, an uncertified copy of school records in the name of the applicant for the 2005 to 2010 academic years was submitted. The Department conducted a further interview with Ms Phan by telephone on 3 April 2018, who was asked what the visa applicant was then doing; Ms Phan was recorded as saying that he was studying sewing at school and that he studied at a teacher’s house two times a week. When asked when he commenced year one, Ms Phan was recorded as stating that he was not sent to school as he was living with her aunt and they had no money to send him.

19. Based on this information and the information provided at interview, the delegate concluded that there was no compelling evidence to show that Mr Phan was born on 10 September 1999 as claimed and therefore was not satisfied that Mr Phan was under 18 at time of application as claimed. The delegate also concluded that based on the information provided, the applicant did not attend school as a child and is not currently studying a full-time course of study. On this basis, the delegate found that he did not meet cl 101.211(1)(a) or 101.213(1)(c).

    Information provided to the Tribunal

20. The Tribunal took oral evidence from Ms Thi Thuy Phan and her son, Mr Binh An Phan, at hearing. The Tribunal was unable to conclude the hearing on the initial hearing date due to the availability of the interpreter and so a further hearing was scheduled to hear all the evidence.

21. Ms Phan told the Tribunal that the visa applicant was her son and that in the year that he was born, in 1999, there was a flood which destroyed documentation including his birth certificate. When a new birth certificate was issued, Mr Phan’s father’s name was not put on the birth certificate because at the time he was born, she was married but her husband was not the father of the child. She had an affair and after he was born there was no contact with his father. She has two other sons, which were born earlier to her husband at the time. She divorced her husband in 2004.

22. She stated that her son did go to school, completing primary school, and that he also attended secondary school until year 8. He then asked to learn a trade and did not complete secondary school. She stated that after he was born, she brought him to her aunt and entrusted him to her care because her husband did not want him to live with them. She stated that he never lived with her, even after her divorce, because she was struggling due to the divorce and caring for the other two children.

23. The Tribunal asked Ms Phan how her son was enrolled at school without a birth certificate, and she stated that at the time her aunt took him to be enrolled and explained the circumstances, and based on compassionate grounds he was allowed to be enrolled. She stated that she visited her son occasionally, but he initially did not know she was his mother – she stated that she gave her aunt some money to help but kept her distance and supported him from behind the scenes. She stated that he was not aware that she was his mother until she came to Australia in 2012 and she told his older siblings about him so they could have a relationship with their brother. She stated that he did not know that she was his mother until she came to Australia.

24. She stated that he finished year 8 of secondary school in 2016 but did not finish the year and then started trade school. Initially, he was learning how to be a tailor/machinist but then he went to trade school to study. He then decided that he did not want to study this course anymore and decided in 2019 to start an automotive course to become a mechanic. She stated that he has never worked full-time and has never been engaged or in a de facto relationship.

25. She stated that she sends money regularly, every month or two, for his expenses. These funds are usually sent through money transfer. She was initially sending these funds to her aunt and sister when he was young, but since he was about 15 or 16 years of age she has been sending the money to him directly. She stated she also sent money to him directly to pay for his education costs. She told the Tribunal that she speaks to her son every day.

26. Mr Phan confirmed in his oral evidence that he had never worked full-time and was currently studying. He also confirmed that he completed primary school and attended secondary school until year 8 but did not finish the year – he left after half a year. He stated that school started in August and finished in May the following year, but trade school is different; this runs from September to September the following year.

27. He stated that he started learning to be a tailor privately for approximately two years and then enrolled in a trade course in 2015. He stated that he started the course but did not finish these studies and stopped in 2017. He stated that he then returned to learn privately until 2018 and then stopped again as did not want to continue. He did not study in 2018 but in 2019 he started a mechanic’s course, which he has not completed. He confirmed that his mother sends him funds for his expenses, usually monthly, but sometimes every couple of months, and sends extra money to pay for his education costs.

    Section 376 certificate

28. The Department’s file contains a non-disclosure certificate issued on 9 March 2018 pursuant to s 375A of the Act, and another non-disclosure certificate was then issued, pursuant to s 376 of the Act, on 27 April 2018. The Tribunal has not considered the certificate issued pursuant to s 375A of the Act as it was replaced with the subsequent certificate issued under s 376 of the Act. However, even if the certificate issued under s 375A had not been replaced, the Tribunal makes the same findings regarding this certificate, as stated below, as it has regarding the certificate issued under s 376 of the Act.

29. Both certificates state that a delegate of the Minister has determined that folios 165 to 168 and folio 174 of the Department’s file provide details on how the Department undertakes investigations regarding identity and disclosure of this information would be contrary to the public interest. The Tribunal has determined that the certificate is invalid because it did not provide details about what the consequences would be if the material was released and there would be no harm to the nation or to the public service by the disclosure of the material.

30. The Tribunal also notes that the information not to be disclosed by the certificate is the information obtained from the Registrar of the People's Committee of Phu Thuan Commune, Phu Vang, Thua Thien Hue, about the genuineness of the visa applicant’s birth certificate. This information, and the information obtained, was included and discussed in the delegate’s record of decision.

    Adverse information

31. The primary decision records a number of points of concern arising from the interview in 2018 and other evidence provided to the Department. The evidence provided at hearing differed, in some parts, to the information provided to the Department at interview. At the time of the hearing, the Tribunal considered the information regarding these matters was information that engaged the Tribunal’s obligation in respect of s 359AA and invited Ms Phan to comment on or respond to this information. The Tribunal later put these concerns to Ms Phan in writing pursuant to s 359A of the Act to allow a further opportunity for Ms Phan to comment on this information.

32. The concerns related to Ms Phan’s statements about Mr Phan’s studies at primary and secondary levels. Ms Phan had stated that her son had not studied when interviewed by the Department. In other evidence to the Department, Ms Phan had provided uncertified school reports and had stated to the Tribunal that he had completed primary school and up to year 8 of secondary school and provided certified school records. The Tribunal, both at hearing and in writing, asked Ms Phan about the different information provided to the Department and to the Tribunal.

33. The Tribunal also raised concerns, at the hearing and in writing, as to why Ms Phan did not disclose her son in her previous visa application. Ms Phan stated at hearing that she had not included the visa applicant in her application because her husband did not want him included in the application. However, in previous statements to the Department, Ms Phan stated that he was not included in the application due to a miscommunication with her previous representative. The Tribunal, both at hearing and in writing, asked Ms Phan about the different information provided to the Department and to the Tribunal.

34. In response to the differing information regarding her son’s school studies, Ms Phan stated that she was at work at the time of the interview in 2018 and was flustered and did not fully understand what was being discussed. She stated that she made a mistake due to her circumstances at the time.

35. In regard to the information as to why her son was not included in the application, Ms Phan stated that the reason he was not included was as stated at hearing, that her husband did not want to include him in the application, to which she had agreed. She stated that at the time of these applications, her partner completed the documentation. Due to her illiteracy, it was not included. She stated that she mentioned it to her husband, but he was not happy about having him in the application and was not willing to offer help and support and so she left him out. She stated that both her other children were mentioned in the application, and her youngest son came to Australia, but not her eldest son.

36. Ms Phan further clarified that she did provide her children’s information to her agent at the time, but she had also instructed that he would not be included, as per her husband’s wishes. As to the difference in her oral evidence to the Tribunal and her written statement, Ms Phan stated that the written statement was prepared for her, but she did not completely understand its content. Owing to her lack of education and literacy, she relied upon her agent’s preparation of the document and was not aware of the content until she was advised.

    Conclusions

37. In support of this claim, the review applicant provided the Department a certified copy of Mr Phan’s birth certificate, which indicates the review applicant as his mother but does not name his father. The document indicates the birth was registered on 15 January 2015, and this certified copy of the document was obtained in May 2015.

38. The explanation for the registration in 2015 was that her son did not require the birth certificate earlier. While the integrity of the document was questioned by the Department, enquiries were made with the Registrar of the People's Committee of Phu Thuan Commune, Phu Vang, Thua Thien Hue about the genuineness of the visa applicant’s birth certificate on 24 March 2017. The Registrar verified that the birth certificate was genuine and that they did not have a record of previous birth certificate registration because all of the records were destroyed by a storm and flooding in 1999 and as a result, they do not have any records from the 1998 and 1999 archives. This was consistent with the review applicant’s evidence to the Department and to the Tribunal and the Tribunal accepts that the birth certificate is genuine. The Tribunal also notes that additional submissions relating to the flooding were provided to the Tribunal, including newspaper articles and photographs.

39. The review applicant also gave oral evidence to the Tribunal that she is the visa applicant’s natural mother. The Tribunal has also considered the DNA results as arranged by the Department, which confirmed that the review applicant is the visa applicant’s mother. The Tribunal accepts that the review applicant is the visa applicant’s natural mother.

1. The Tribunal considered that the review applicant and the visa applicant gave their evidence in a forthright manner and answered the Tribunal’s questions fully and frankly. Their evidence, given separately, was consistent with each other and with documentation provided to the Department and the Tribunal. There was some discrepancy in the review applicant’s evidence, as highlighted in the preceding reasons for this decision, but the Tribunal has accepted the explanations provided.

2. The review applicant acknowledged that her son (the visa applicant) was not referred to in the review applicant’s own visa application, and provided an explanation, as discussed above. The Tribunal has considered this explanation and accepts the explanation given for not disclosing this information earlier in her own visa application. The Tribunal accepts that this was due to miscommunication in the application process between the review applicant and her agent at the time, and due to her then husband’s view that the visa applicant was not to be included in that process.

3. Similarly, the review applicant’s evidence regarding her son’s school attendance was not consistent. The Tribunal notes the review applicant was recorded as saying that the visa applicant did not study when interviewed in 2018 by the Department. However, uncertified academic records were also provided on behalf of the visa applicant to the Department which showed that the visa applicant had attended primary school and until year 8 of secondary school.

4. The review applicant also stated at hearing that the visa applicant did attend primary school and up to year 8 in secondary school. When asked about the discrepancy in her evidence, the review applicant stated that she was at work at the time of the interview in 2018 and was flustered and did not fully understand. The Tribunal accepts that the review applicant did not understand at the time of the interview, on the basis that she was at work and not prepared. The Tribunal accepts the explanation provided and notes that apart from this response, the other documentary evidence provided to the Department was consistent with the oral evidence at hearing. The Tribunal notes that a certified (and translated) copy of these records was provided in the review application before the Tribunal. This information was also consistent with the visa applicant’s oral evidence at hearing of his primary and secondary school studies.

5. The Tribunal accepts the birth certificate of the visa applicant is genuine, as verified to the Department. Furthermore, the DNA evidence also establishes that he is the review applicant’s son.  The certificate records his birth date as 10 September 1999. The reasons provided for the registration of his birth certificate in 2015 and the destruction of the original are, on the balance of probabilities, accepted, and supported by other evidence provided to the Tribunal, such as newspaper articles and photographs. The registration, based on the evidence provided at registration, was accepted by the relevant authority and a birth certificate was issued. Accordingly, as the Tribunal accepts the information contained in the birth certificate, the Tribunal is satisfied that the visa applicant was not over 18 years of age at the time of the application and therefore meets the definition of a dependent child under reg 1.03 of the Regulations.

6. Accordingly, cl 101.211(1)(a) is met at the time of application, and continues to be met at the time of decision.

   Child-parent relationship

7. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

8. The Tribunal has considered the visa applicant’s birth certificate and DNA test results above, as submitted to the Department, and is satisfied that Mr Phan is Ms Phan’s son. Therefore, the Tribunal is also satisfied that at the time of the application, based on the discussions and findings outlined in the preceding paragraphs, Mr Phan was not over 18 years of age, and that he turned 18 years of age on 10 September 2017 after the application was made. The Tribunal has also considered the review applicant’s circumstances and the Tribunal is satisfied that at the time of the visa application, she was an Australian permanent visa holder.

9. The review applicant stated that she has supported the visa applicant while the visa applicant has been in Vietnam and that he is completely reliant on her for financial support. The review applicant stated that she sends money for the visa applicant’s expenses, including food and accommodation, and has paid for all his courses and studies. The review applicant provided a number of money transfer transactions to the Tribunal and the Department, which show the provision of funds to the visa applicant from the review applicant. Accordingly, given the visa applicant’s age at the time of the application and the information provided by the review applicant of the support given to the visa applicant while in Vietnam, the Tribunal is satisfied that the visa applicant is the dependent child of the review applicant, who is an Australian permanent visa holder.

10. Accordingly, cl 101.211(1)(c) is met at the time of application and continues to be met at the time of decision.

11. For the reasons above, the criteria in cl 101.211 and cl 101.221 are met.

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

    DECISION

13. 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 101.211 of Schedule 2 to the Regulations; and

    ·cl 101.221 of Schedule 2 to the Regulations.

    John Longo
    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.

    …