Truong (Migration) - [2024] AATA 1101

Truong (Migration) [2024] AATA 1101 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms My Xuan Truong
VISA APPLICANT:  Master Troung Thanh Hung Phan
REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)
CASE NUMBER:  2317302
HOME AFFAIRS REFERENCE(S):          BCC2021/1264543
MEMBER:David Crawshay
DATE:22 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 22 March 2024 at 12:45pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – legal permission for child’s removal – law of Vietnam – relocating with children overseas after divorce and/or separation – consent to the grant of visa – divorce order – shared rights to the child – lost communication with the father – whether father still alive – common law presumption of death – enquiries made about the whereabouts of the father – age and health profile of the father – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.226; Schedule 4, PIC 4017
CASES
Axon v Axon (1937) 59 CLR 395
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 8 September 2023 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 applied for the visa on 16 June 2021. 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.101.226.
The delegate refused to grant the visa on the basis that cl.101.226 was not met because the visa applicant did not satisfy public interest criterion (PIC) 4017. In her decision to refuse the visa, the delegate found that the visa applicant had yet to provide evidence to satisfy PIC 4017.
The review applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Troung Thanh Hung Phan. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant…

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 Truong (Migration)

Details

AGLC: Truong (Migration) [2024] AATA 1101
Case: [2024] AATA 1101
Decision Date: 22 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a child applicant. The review applicant, presumably the child's parent, sought to have the decision not to grant the visa set aside. The central dispute revolved around whether the visa applicant met Public Interest Criterion (PIC) 4017, a mandatory requirement for applicants under 18 years of age.

The Tribunal was required to determine if the visa applicant satisfied PIC 4017, which necessitates that either the law of the applicant's home country permits their removal, or that each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or that the grant of the visa would be consistent with any Australian child order. The Tribunal had to assess the evidence presented regarding Vietnamese law, the consent of the child's parents, and any relevant Australian child orders.

The Tribunal found that there was insufficient evidence to satisfy subclauses (a) or (c) of PIC 4017. Specifically, no evidence was presented to demonstrate that Vietnamese law permitted the child's removal, nor was there evidence that any Australian child order was in force or that the visa grant would be consistent with such an order. Consequently, the visa applicant sought to rely on subclause (b), which requires the consent of each person who can lawfully determine the child's residence. The Tribunal noted that the divorce order indicated shared rights to the child, and the review applicant had lost communication with the child's father. While the review applicant had made enquiries about the father's whereabouts, including placing newspaper advertisements, the Tribunal was not satisfied that the father was deceased, nor that his consent had been obtained or was otherwise excused.

As the visa applicant failed to satisfy PIC 4017, the Tribunal affirmed the decision not to grant the Subclass 101 visa. No claims were advanced in relation to other visa subclasses within Class AH.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant satisfies PIC 4017, which is required by cl.101.226 where an applicant has not turned 18 at the time of decision. As at the time of this decision the visa applicant has not yet turned 18. Therefore, he is required to meet PIC 4017. Public interest criterion 4017 provides as follows: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. There is no evidence before the Tribunal that the law of the visa applicant’s home country permits her removal. Although an undated submissions letter was provided from the visa applicant’s former representative (in response to a s.57 “natural justice” letter from the Department dated 22 September 2022) that contained a section titled “A Vietnamese perspective of relocating with children overseas after divorce and/or separation”, nothing in these submissions points to the review applicant being able to remove the visa applicant based on the law of Vietnam. The Tribunal is not satisfied that the visa applicant meets Item 4017(a). There is no evidence before the Tribunal that the grant of the visa would be consistent with any Australian child order in force in relation to the visa applicant. The Tribunal is not satisfied that the visa applicant meets Item 4017(c). The visa applicant therefore seeks to satisfy Item 4017(b), which requires the consent of each person who can lawfully determine where the visa applicant is to live to the grant of the visa.Pre-hearing information The Tribunal has read the Department file as well as information submitted since the delegate’s decision. This information includes, relevantly:·the aforementioned undated submissions letter from the visa applicant’s former representative, attaching a document translated as “Functions, obligations and organizational structure of General Department of Civil Judgment Enforcement” and dated 5 November 2014;·a birth certificate in respect of the visa applicant dated 4 March 2011;·a divorce certificate dated 18 April 2011;·a document titled “Confirmation of judgment execution results” dated 10 March 2022;·a series of advertisements placed in a newspaper called “Lao Dong” between December 2021 and February 2022;·statutory declarations from the review applicant dated 3 June 2021 and 1 March 2024;·documents relating to a verification process; and·submissions letters dated 14 August 2023 and 6 March 2024 from the review applicant’s representative. This information has been considered by the Tribunal in its assessment of whether the visa applicant meets PIC 4017.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.David CrawshayMember

Ratio Decidendi

Legal Principle Established

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