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

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).
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).
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.
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.
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.
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…

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 Phan (Migration)

Details

AGLC: Phan (Migration) [2021] AATA 5655
Case: [2021] AATA 5655
Decision Date: 30 November 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), made by Mr Phan. The dispute centred on whether Mr Phan met the criteria for being a "dependent child" of an Australian citizen or permanent visa holder at the time of his visa application. The decision was made by John Longo, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the visa applicant, Mr Phan, satisfied the definition of a "dependent child" as prescribed by the Migration Regulations 1994. This involved assessing whether he was under 25 years of age, or incapacitated for work, and whether he was in the requisite child-parent relationship, specifically whether he was reliant on his parent for financial support to meet basic needs. The Tribunal also had to consider the validity and authenticity of the documentation provided, particularly Mr Phan's birth certificate, in light of adverse information and inconsistencies.

The Tribunal reasoned that the criterion in cl 101.211 of the Regulations required the applicant to be a dependent child at the time of application. The definition of "dependent child" in reg 1.03 necessitates that the child is not engaged or partnered, and if 18 or older, is reliant on the parent for financial support for basic needs or is incapacitated for work. The Tribunal noted that the applicant's birth certificate, registered significantly after his birth, raised concerns. However, the Registrar of the People's Committee verified the birth certificate's genuineness and explained that earlier records were destroyed by flooding in 1999, which also accounted for the lack of prior registration records. The Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), for reconsideration, directing that the visa applicant meets the criteria set out in cl 101.211 and cl 101.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE 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 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 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. 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 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. 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. 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. 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.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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.John LongoMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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.…

Ratio Decidendi

Legal Principle Established

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