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

1. 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).

2. 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).

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.101.226.

4. 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.

5. 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.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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).

10. 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).

11. 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

12. 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.

13. This information has been considered by the Tribunal in its assessment of whether the visa applicant meets PIC 4017.

14. Other documents provided to the Tribunal included bank statements in respect of the review applicant’s father, a contract for transfer of land use rights, communication records, a household registration book and an itinerary for travel to Vietnam in 2022. The bank statements, contract for transfer of land use rights and household registration book appear to substantiate claims by the review applicant in a statutory declaration dated 3 June 2021 that the visa applicant lives with the review applicant’s father and that she provides financial support to him through the sale of a property she previously owned. Furthermore, the itineraries substantiate that and about her travelling to Vietnam to see him and the communications records that she communicates with him. None of these is in issue. None appears to be relevant to the Tribunal’s assessment of whether the visa applicant meets PIC 4017.

    Testimony at hearing

15. The review applicant claimed at hearing that she had not had contact with her ex-spouse (and the father of the visa applicant) since they were separated in 2009 or 2010. She said that their divorce was filed in October 2010, the reason being that they did not share the same point-of-view. She said that her ex-spouse did not care about her and that resulted in a lot of conflict. She said that the court organised a lot of meetings for reconciliation but her ex-spouse did not come. She said that he did not come to the divorce proceedings, and a decision was made without him. She said that she did not demand anything from him since the decision until now. She said that she was the only one to raise the visa applicant.

16. When asked what enquiries she had made about the whereabouts of her ex-spouse, the visa applicant’s father, the review applicant told the Tribunal that her friends had asked around but that it had been a long time since they had seen him. She said that he does not live at the place where he previously lived. She said that she put advertisements in the newspaper. She said that she did not know what else to do – she had waited a long time before deciding to proceed with the visa application. She said that she had tried to find him, but it had been 14 years since their separation with no communication and no information. She said that if her ex-spouse really loved his son, then he should contact him.

17. The Tribunal enquired about whether the review applicant’s ex-spouse had any family, to which she replied that he did, although she told it that she did not know where they were. She said that she did not have any relationship with his parents or siblings and the marriage lasted for one year until they separated. She said that she did not know where his siblings were. She said that her friends asked around but they did not know where they lived.

18. When asked what enquiries she had made, the review applicant replied that she had been living in Australia for most of the time and had only been visiting Vietnam once-a-year or once every two years. She said that she had been asking her friends where he was. She said that this was why she placed the advertisements in the newspaper.

19. When asked whether she had contacted the friends of her ex-spouse, the review applicant said that she only knew a few of his friends. She said that when she visits Vietnam it was difficult to find these friends and those who she did find say that they have not seen him for some time.

20. The Tribunal asked the review applicant whether she had attempted to locate her ex-spouse at the address listed in the divorce order. She told it that she went to the address and that people informed her that he did not live there anymore and that they had not seen him for a long time.

21. At this point, the Tribunal took the review applicant’s attention to a mobile telephone number ([Number 1]) and asked her if she recognised that number. She said that she could not remember exactly as it had been a while. She said that she has two telephone numbers. When asked if the number used in the newspaper advertisements was one of her numbers, she said that she had been using her current number for some time. She said had been using her previous number for a while but could not remember. She said that she had been using her current number for three or four years. She said that she used other numbers before. She said that she wanted to use a separate number for work and another for friends.

22. The Tribunal sought to clarify the review applicant’s testimony. It asked how many numbers she currently had, and she answered that it was one number. It asked how long she had only had one number, and she said that she had been using her current number for a long time and that while using this number she had been using other numbers. When asked directly about when she last used numbers other than her current number, she said that she could not remember.

23. Lastly, the review applicant denied that the visa applicant had an Australian mobile telephone number. She said that he did not use mobile telephones but uses the phone belonging to a friend’s father.

24. At this point, the Tribunal asked the review applicant why the mobile telephone number ([Number 1]) would have appeared in the newspaper advertisements seeking contact from the review applicant’s ex-spouse. The review applicant replied that this was the number for people to contact her directly. The Tribunal put to her that the number appears in the advertisements and yet she had not definitively said that it was her number, to which she replied that she had said that she used two numbers before, but it was a long time ago. She said that she was not sure. She said that she did not say that it was not her number. The Tribunal sought to clarify that it had not suggested that the review applicant had denied that it was her number, only that she had not definitively said that it was her number. The review applicant replied that she was sorry for not giving a clear answer, but that this was the truth.

25. The Tribunal sought to summarise the information in front of it. It told the review applicant that the evidence showed she has a number ([Number 2]) whereas the newspaper advertisements contained another number. It said that while the review applicant had claimed that she had had previous numbers, she could not remember whose number was the number contained in these advertisements. The Tribunal told her that this information went to the genuineness of the attempts to locate the visa applicant’s father, and it put to the review applicant that it is not a genuine attempt to locate if she put in a number that was not her number.

26. The review applicant told the Tribunal that she had used two numbers. She said that the reason she put in that number was that she wanted to put it in separately. The Tribunal remarked that this was the first time she had acknowledged that it was her number. She replied that she cannot remember the number when it calls. She said that she did not deny that the number was not hers. She said that she was not good at memorising numbers, and this was why she does not confirm numbers.

27. The Tribunal remarked that the visa applicant applied for the visa in June 2021 during the middle of when the advertisements were being placed,[1] and yet she used the [Number 2] number on the application form. The review applicant replied that she wanted the number to be separate so that when the number rings, she knows it belongs to the visa applicant’s father.

    [1] Although the translations of the newspaper advertisements state that they were placed between January and December 2021, this does not appear to be correct. Instead, the Tribunal finds based on the untranslated documents that they were placed between December 2021 and February 2022.

28. At this point, the Tribunal explained to the review applicant that because she claims to have not seen the visa applicant’s father for 14 years, it needed to consider whether he was still alive. It explained that, although it was inappropriate to apply strict rules of evidence such as the common law presumption of death, the factors used in that presumption might assist. The Tribunal explained that, in circumstances where a person has been missing for seven years or more, consideration should be given to the whole circumstances of the case and the respective probabilities of life continuing and having ceased need to be balanced.

29. The Tribunal heard from the review applicant that, as far as she knew, the visa applicant’s father was born in 1980. The Tribunal noted that the life expectancy for a male in Vietnam was 69 years in 2021 according to figures from the World Bank.[2] It heard from the review applicant that the visa applicant’s father was very healthy during the course of their marriage and she did not see that he had any conditions.

    [2] World Bank, ‘Life expectancy at birth, male (years) – Vietnam’, indicator/SP.DYN.LE00.MA.IN?end=2021&locations=VN&start=200

30. The Tribunal laid out its concerns about what enquiries were made – firstly, its concern about the mobile telephone number put in the newspaper advertisements; and secondly, the vague and general information about what enquiries took place. In response, the review applicant said that she understood these concerns, but added that the court tried to contact him many times since the separation and during the divorce proceedings and yet he did not come. The Tribunal suggested that this might have been a manifestation of his intention to abandon his family.

31. The Tribunal then questioned the visa applicant. The visa applicant told it that he did not know his father, He said that the last time he would have seen his father was when he was three or four months old.

32. The Tribunal laid out its further concerns to the review applicant. It told her that the divorce order submitted by her did not give her the sole right to decide where the visa applicant till live. It told her that the document purportedly from the Bureau of Civil Judgement Enforcement was found to be fraudulently altered, and that even if it were not fraudulently altered, it listed her at an address in Vietnam and so may not have entitled her to take the visa applicant out of the country. The review applicant said that all the documents had been submitted. She said that the divorce order was the truth. She said that if the visa applicant’s father was responsible, he would have contacted the visa applicant. She asked what else she could do.

33. The review applicant said in closing that what she had said was the truth and that she did not know what to say. She said that she had been away from the visa applicant for 14 years. She said that if she had been able to contact the visa applicant’s father, then she would not have waited until now. She requested the Tribunal to have empathy.

    The Tribunal’s findings

34. The review applicant claims to be the mother of the visa applicant. Based on the birth certificate dated 4 March 2011, the Tribunal accepts that she is. It accepts that she is someone who can lawfully determine where the visa applicant is to live. It accepts that, by applying for the present visa, she consents to the grant of the visa.

35. The Tribunal now considers whether there is any other person who can lawfully determine where the visa applicant is to live and, if so, whether that person consents to the grant of the visa. It finds that the divorce order dated 18 April 2011 in respect of the review applicant and the visa applicant’s father does not give the review applicant the sole right to decide where the visa applicant will live, but instead reserves rights to the visa applicant’s father such as to visit, take care of and educate the visa applicant.

36. The Tribunal has considered the document titled “Confirmation of Judgement Execution Results” dated 10 March 2022, which purports to confirm that the review applicant has the “rights and obligations to bring the visa applicant to her residence place”. However, it places significant weight on the results of the verification process undertaken by the Bureau of Civil Judgement Enforcement of Rach Gia City which found as follows:

    The Bureau of Civil Judgement Enforcement of Rach Gia City did not confirm that Ms. Xuan had the rights and responsibilities to take Hung to Ms Xuan’s new residence. There is also no judgement stated in the court order. Therefore, the people who provided the confirmation to the Australia Consulate General has fraudulently altered the content of a document issued by the Bureau of Civil Judgement Enforcement of Rach Gia City.

37. The Tribunal has considered but ultimately rejects the submission by the visa applicant’s previous representative in an undated submissions letter that the document is “legally valid”. Firstly, the representative does not give reasons about why the document is legally valid. Secondly, the document relied upon by the representative in the submissions letter – namely, a translation of an article titled “Functions, obligations, and organizational structure of General Department of Civil Judgment Enforcement” dated 5 November 2014 – is a general document that explains the functions, obligations and organisational structure of the General Department of Civil Judgement Enforcement. It does not explain why the document purportedly from the Department is legally valid or, more specifically, why the document would confirm that the review applicant had the right to take the visa applicant to her new residence if this were not included in the original divorce order.

38. The Tribunal places more weight on the results of the verification check undertaken by the Bureau of Civil Judgement Enforcement which found the document to be fraudulently altered than it does on the document itself or on submission made by the visa applicant’s then-representative. Based on this information, the Tribunal finds that the document has been fraudulently altered.

39. The Tribunal does not accept that the review applicant is empowered to bring the visa applicant to her residence based on the contents of the document purportedly from the General Department of Civil Judgement Execution.

1. The Tribunal has considered whether the visa applicant’s father has or is likely to have died. There is no documentary evidence in the form of, say, a death certificate, to show that he has died, and there have been no claims made to the effect that he has died. Moreover, and specifically in terms of the common law presumption of death, the Tribunal notes that is not bound by technicalities, legal forms or rules of evidence,[3] and it is inappropriate for it to apply curial devices such as presumptions of law or fact.[4] However, given that the review applicant claims to have not seen or communicated with the visa applicant’s father for around the last 14 years, the Tribunal accepts that it may be appropriate to consider, but not strictly apply, the presumption when considering relevant factors in balancing the respective probabilities of life continuing against it having ceased.

   [3] Migration Act, s.353(a).

   [4] A v MIMA (1999) 53 ALD 545, [1999] FCA 116, [41].

2. The common law presumption of death can be expressed as follows:

   If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of, by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or have learned of his whereabouts, were he living then, in the absence of evidence to the contrary, it should be found that he is dead.[5]

   [5] Axon v Axon (1937) 59 CLR 395 at 405.

3. While Axon v Axon does not include a duty to enquire about the whereabouts of the person presumed to have died, other authorities do,[6] and the Tribunal considers that it would be a relevant factor in the present matter where it is claimed that enquiries were made.

   [6] Chard v Chard [1955] 3 All ER 721; Manning and Manning [1977] FLC 90-298; (1977) 3 Fam LR 11, [8].

4. The Tribunal has considered the information in front of it relating to the circumstances of the visa applicant’s father and associated factors. It has considered information showing that the visa applicant’s father was not present during the proceedings that led to his divorce from the review applicant, and it accepts as likely that the review applicant has not seen or heard from him since around 2010 – a period of around 13 or 14 years.

5. The Tribunal has considered claims made by the review applicant that inquiries had been made as to the whereabouts of the visa applicant’s father. It has considered advertisements placed in a newspaper in Vietnam that are translated as follows:

   Child: PHAN TRUONG THANH HUNG is looking for the father PHAN THANH LIEM, native origin: Rach Gia, Kien Giang. Please contact Ms Xuan via phone number [Number 1]. Many thanks.

6. However, the Tribunal has major concerns stemming from the fact that the review applicant was unable to definitively state at hearing that the number belonged to her. Additionally, no documentary evidence has been provided to show that the number belonged to her, such as mobile telephone bills. Owing to these concerns, and with no documentary evidence to substantiate that the number belonged to the review applicant, the Tribunal is not satisfied that the number featured in these advertisements belonged to her.

7. Because of this, the Tribunal does not accept that the newspaper advertisements were placed with any expectation that the review applicant would receive an answer from the visa applicant’s father. As a result, they are given very little weight as being evidence of enquiries having been made about the whereabouts of the visa applicant’s father.

8. Moreover, the other claims that were made by the review applicant about what enquiries were made are vague and generic, and no information was provided that would allow the Tribunal to substantiate that these enquiries were made in the first place. This includes no information about the identity of the friends whom the review applicant claims made these enquiries and no declarations, statements or letters from these people. As a result, the Tribunal accords very little weight to what it considers to be unsubstantiated claims.

9. The Tribunal has lastly considered the age and health profile of the visa applicant’s father. It finds that he was born in 1980, and based on this would currently be 43 or 44 years old. It finds that this is well below the life expectancy for males in Vietnam. Based on the testimony of the visa applicant at hearing, it finds that he was “very healthy” during the course of his marriage to the review applicant and suffered from no conditions. The Tribunal places significant weight on this information.

10. The Tribunal has balanced the above information when assessing the respective probabilities of the visa applicant’s father being alive and having died. While on the one hand it gives some weight to information showing that the review applicant has not seen or communicated with the visa applicant’s father for around the last 14 years and very little weight to the review applicant’s enquiries into his whereabouts (which it considers were ineffectual at best), on the other hand it gives significantly more weight to information about his age and health profile, both of which point firmly to him still being alive.

11. Based on the information and the findings made, the Tribunal does not accept that the visa applicant’s father has or is likely to have died.

    CONCLUSION

12. The Tribunal has made findings above that there is no documentary information to show that the review applicant has the sole right to decide where the visa applicant is to live or that she is empowered to bring the visa applicant to her residence. It also does not accept that the visa applicant’s father has or is likely to have died. In the absence of this or other information, it finds that the visa applicant’s father remains as a person who, along with the visa applicant’s mother, can lawfully determine where the visa applicant is to live.

13. The Tribunal acknowledges information submitted by the review applicant in her two statutory declarations and at hearing about her concern for the welfare and future of the visa applicant and the benefit that he would receive from being close to her. It accepts that she has not seen or heard from the visa applicant’s father for the last 14 years. It notes the submissions provided on her behalf by her representative that reiterate these claims. However, the Tribunal considers that the clear words of PIC 4017 do not allow for any discretion, and this includes no discretion to consider the best interests of the visa applicant – which in any case are dealt with under PIC 4018.

14. As the visa applicant’s father has not consented to the grant of the visa applicant’s visa via a Form 1229 or otherwise, the Tribunal finds that he has not consented to the grant of the visa.

15. Based on the findings made above, the Tribunal is not satisfied that the visa applicant meets Item 4017(b).

16. As the visa applicant is unable to meet any of the alternative requirements under PIC 4017, he does not meet that criterion in its entirety.

17. 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

18. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    David Crawshay
    Member