Broussard v Minister for Immigration, Local Government and Ethnic Affairs

The principal Chun Fok is a married male born on the 15th January 1954 in Vietnam. At the time of the primary application in this matter, he was therefore aged 36 years. He is a citizen of Hong Kong and resides there permanently. He is the brother of the applicant in these proceedings Steven Fok who is currently aged 32 years, and who arrived in Australia in 1978 as a refugee. He was granted Australian citizenship in 1981. He is a married person with one child and currently owns a Chinese restaurant in the Adelaide suburb of Norwood.

The principal made application for a preferential class of family visa in Hong Kong at the Department's post there on the 16th November 1990. The principal chose as his sponsor his brother Steven Fok, an Australian citizen. However, on the 2nd May 1991 an officer of the Department ("primary decision-maker") in assessing the application found that the principal was unable to satisfy the definition of "remaining relative" as it appeared in the Migration Regulations. The application was therefore refused. The principal was advised in writing. Subsequently, on the 28th May 1991, the principal's brother and sponsor Steven Fok made application for review of the said decision to the Migration Internal Review Office ("MIRO") at Adelaide. However, the applicant was advised that on the 16th April 1992 that a review officer had upheld the decision made at first instance.

The responsible review officer summarised the reasons for decision in the following manner:-

"...After careful examination of all the evidence presented in the original application and in this appeal, I am unable to determine that the applicant is the brother of the sponsor for the following reasons:

* the applicant has stated his date of birth as 15 January 1956, however a statutory declaration made by ... Martin Fok ... claims that his son .... was born on 15 January 1954 - a birth certificate verifies that (the principal) was born on 15 January 1954 in Saigon;

* on the same declaration (Martin Fok) states that his second son ... was born on 23 June 1956;

* the applicant has stated that he married Wong Mei Ying on 16 March 1978 in Taipa, a Territory of Macau, and yet on a previous migration application dated 26 June 1987, the applicant stated that he married Wong Mei Ying on 28 September 1978 in Hong Kong. Furthermore, in 1978 he stated that his place of birth was Lai-Thieu which is some distance from Saigon.

As there are no formal papers which prove the relationship between Chun Fok and the sponsor ... I consider that these inconsistencies are significant evidence which discredit the claims of the sponsor and his family that Fok Chun is the sponsor's brother.

Given that the onus of proof lies with the person seeking a result, I am not satisfied on the evidence available, that the applicant is the brother of the sponsor, and therefore determine that he does not satisfy the remaining relative criteria specified by Regulation 9."

Subsequently, on the 4th June 1992, the applicant made application to the Immigration Review Tribunal at its South Australian Registry for review of the earlier decisions.

The relevant criteria relating to the grant of a class 104 preferential family visa, as they stood at the time of the primary application in this matter were detailed in Part 3 of Schedule 2 of the Migration Regulations 1989. Here, under item 2 in column 1 of Part 3 was found the description "preferential" the code number 104 and the prescribed criteria, which were set out in the following terms:-

"(a) aged dependent relative, orphan relative, remaining relative, special need relative.

The afore-described symbols were described in Schedule 1 of Regulations in the following terms:-

E any members of the applicant's family unit must satisfy the relevant criteria

Further, as the principal has nominated the "remaining relative" sub-class in this matter, he is also required to demonstrate satisfaction of the definition of that term as it appeared in Regulation 9 of the Regulations:-

9. (1) An application for a preferential family visa is a remaining relative for the purposes of item 2 in Part 3 in Schedule 2 if the applicant has a relative who:

(ii) a step-relative, within 1 of those degrees of relationship;

unless the applicant is disqualified under subregulation (2).

(a) the applicant or the spouse (if any) of the applicant:

(i) resides in the same country, not being Australia, as an overseas near relative; or

(ii) has had contact with an overseas near relative during a reasonable period preceding the application; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives.

(3) In this regulation 'overseas near relative' means a person who is:

(a) a parent, brother, sister or non-dependent child; or

(b) a step-relative, within 1 of those degrees of relationship;

of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1)".

The Tribunal gave consideration to copious documentation on file attesting to the identity and the familial affiliation of the principal in this matter. The Tribunal also gave consideration to a sworn statement from Mr Martin Fok, alias Hoac Xuan, father of both principal and applicant. Mr Fok stated that he was born on the 2nd January 1928 in Canton Province, China. He stated that he has a son Fok Chun Keung also known as Hoac Kien Minh living in Hong Kong. Mr Fok was born in China, but when he was a child his family migrated to Vietnam. He subsequently married Ly Nganh, also known as Ann Fok, in Vietnam. The marriage produced seven children whose details are as follows:

1. Chun Fok (alias Hoac Kien Minh); male; 15/1/54; Hong Kong

2. John Fok (alias Hoac Kien Trung); male; 23/6/56; Australia

3. Jenny Fok (alias Hoac Mo Trinh); female; 23/3/60; Australia

4. Steven Fok (alias Hoac Kien Huy); male; 25/8/61; Australia

5. Sandy Fok (alias Hoac Mo Phan); female; 23/8/63; Australia

6. Allan Fok (alias Hoac Kien Duc); male; 29/12/64; Australia

7. Tony Fok (alias Hoac Kien Hong); male; 4/4/74; Australia.

Mr Fok stated that he and his wife altered their marriage certificate in 1973, so that the identity of their fourth child disappeared. The fourth child adopted the identity of his brother Hoac Kien Huy who was born in 1961, who in turn adopted an new identity Hoac Kien Duc, born 1964. This was done so that their fourth child (Hoac Kien Tuyen) whose identity had disappeared would not be forced to undertake military service. In 1973 the family sent Chun Fok to Hong Kong "for safety". Chun Fok however did not obtain a legal entry permit so he declared that he had come from China. He was then issued with an identity card.

In June 1978, Mr Fok, his wife and remaining six children fled Vietnam by boat. After reaching Malaysia, they journeyed on to Australia arriving on the 16th August 1978. He stated that, "in interviews with authorities in Malaysia we did not say anything about Chun Fok because that would have made matters very complicated and we retained the ages for the other boys that we had used in Vietnam".

Attached to the declaration of Mr Fok were further declarations made by the following persons:-

1. Mrs Hua Chuoc Tram, of Henley Beach, who has known the family for 20 years, and who attested to the fact that Chun Fok is the son of Martin and Ann Fok. Mrs Hua is not related to the family.

2. Mr Tran Kiet Cuong, of Pennington, South Australia a schoolboy friend of the Fok children who is also not related, and who also makes a similar testament.

A declaration was also made by the applicant in this matter Steven Fok, the principal's sponsor.

He stated that he is the fourth child in the Fok family and his eldest brother, the principal, is seven years older. He stated that he recalls when his brother escaped to Hong Kong. Steven was some 12 years of age. He stated that he had always hoped for a complete family reunification in Australia, but this was then hampered by the fact that his sister-in-law, the principal's wife, Wong Mei Ying, had parents who were still alive. However they passed away prior to the making of the primary application in this matter. The only remaining sibling of his sister-in-law is described as being "long lost" and is presumed to be living somewhere in China. However the principal and his wife have had no contact with this person for many years.

The Tribunal was also able to view certified copies of documentation relevant to the principal in translated form, such as certification of birth, certification of marriage and documents pertaining to the death of the principal's in-laws in Macau. The applicant also attended a hearing convened in the Adelaide Registry where he gave sworn evidence. Steven Fok confirmed that he was born in 1961 in Vietnam, as one of seven children to the marriage of his parents. His family however are of Chinese origin, and his parents were born there. He told the Tribunal that he has no relatives of the first degree currently living in Vietnam. He completed his schooling to Year 9 there, before escaping by boat with his parents and other siblings, destined for Australia. He recalls that his former school friends had written to him in Vietnam telling him of "what a good place Australia was". Ultimately, after reaching Malaysia, the family made their way to Australia arriving on the 16th August 1978. Refugee status was sought and obtained. Steven Fok became a citizen in 1981. He married in Melbourne in 1984 and has one child. In 1989, the family moved to Adelaide. He currently maintains his own restaurant business known as the "South China" on the Parade at Norwood. He owns his own house and lives there with his wife and child.

He explained that his eldest brother Chun Fok has been living in Hong Kong since he was sent there in 1973 to avoid conscription. The Tribunal was told that he left Vietnam "illegally by boat" after arrangements were made by his parents.

The applicant stated that his brother was seven years older than he, and he recalls he was only 12 years of age when Chun left Vietnam. Chun had reached 19 years, and according to the applicant, was approaching "conscription age", and so the family chose to send him away. They had relatives in Hong Kong, and thus he was sent there.

In order to remain in Hong Kong, he falsified his personal particulars and stated that he had come from China. As a result, he secured permanent residence. The family maintained contact with him by writing letters.

In September 1978 Chun Fok married in Macau, although the same was registered in Hong Kong. The couple now have three children. Chun is a small scale retailer, while his wife looks after the children. His wife has no relatives in Hong Kong. She has an estranged sibling believed to be in China, although there is no contact.

Chun Fok came to Australia in 1988 as a visitor. He stayed for one month. Prior to this, his parents had visited him in Hong Kong.

The Tribunal also took sworn evidence from the applicant's mother, Ann Fok. She stated that she was born on the 7th July 1935 in Vietnam. She lived all of her life there prior to escaping and coming to Australia. She has relatives in the United States. She married Martin Fok in Vietnam when she was 19 years of age. She told the Tribunal that she has seven children, with the eldest Chun Fok living in Hong Kong and the other six living in Australia.

She indicated to the Tribunal that Chun Fok had left Vietnam in 1973 when he was 18 years of age, in order to avoid military service. The second eldest son, John Fok had avoided military service subsequently as a result of his business which he undertook in Saigon, some 17 kilometres away from the family home in Vietnam. Further, John was a member of the People's Defence Force, a local militia, and this also enabled him to avoid conscription.

Ann Fok explained that she visited Hong Kong with her husband some ten years ago and stayed with her son for six weeks. A second visit took place in 1988. In that year her son had also visited Australia.

She stated that her son was a "watchmaker" in Hong Kong.

The Tribunal also heard submissions from the applicant's representative. In referring to previous evidence given by the father Martin Fok, that Chun Fok had falsified his personal particulars in order to be able to settle in Hong Kong, it was stated that when the principal registered for an identity card he changed his date of birth by exactly two years so that it would not tie in with a person of military age, "thereby avoiding any suspicion". He apparently had not told his family this and thus it was a matter overlooked when the requisite forms were being prepared. When the family assisted in the preparation of the application forms, they took the principal's date of birth from his Hong Kong identity card (produced). This of course showed a different date of birth from the copied birth certificate (produced) and of course Martin Fok's own statutory declaration submitted with the application.

It was argued that because of this oversight, the inconsistency had been produced, as found by the departmental decision-makers. However it was confirmed that in accordance with the parent's evidence, Chun Fok was born on the 15th January 1954, and John Fok on the 23rd June 1956.

In relation to the discrepancy with respect to the family's former addresses in Vietnam, it was argued on the basis of the evidence given to the Tribunal, that the Fok family had two houses, one in Saigon, and one in a village several kilometres from Saigon known as Lai-Thieu. The principal had stated he had been born in the village, whilst other records show that he was born in Saigon. It was argued that although the principal was in fact born in a hospital in Saigon, following the birth, the family returned to their house in the village.

In relation to the alleged discrepancies with respect of the marriage dates of the principal, it was argued that marriage documents produced to the Tribunal showed the fact that the ceremony was held at Taipa in Macau on the 16th March 1978. The marriage was subsequently registered in the island's Civil Registry office in Macau on the 12th June 1978. Following this, the couple held a "Chinese Wedding Banquet" in accordance with traditional custom in Hong Kong on the 28th September 1978. It was argued therefore that the legal date of the marriage was the 16th March 1978, although the couple only held themselves out publicly as husband and wife after the formal wedding in September of that year.

In order to obtain a preferential family visa on remaining relative grounds, the principal is required to satisfy a decision-maker that the requisite legal requirements have been met. As set out previously, the prescribed legal criteria for this class of visa were set out in Part 3 of Schedule 2 of the Migration Regulations 1989. The additional criteria required that the principal show that he is a "remaining relative" of his sponsor in Australia. The definition of that term was set out in Regulation 9. It requires that the principal demonstrate that he is a "brother" of an Australian citizen or Australian permanent resident who is usually resident in Australia. Further, it must be demonstrated that neither the principal nor his spouse have a close relative living in their country of residence and no more than three altogether living elsewhere overseas.

The evidence put before the Tribunal is that the principal Chun Fok is the natural brother of his sponsor Steven Fok, who is an Australian citizen and usually resident here. Further, it has been argued that Chun Fok has no other close relatives living in Hong Kong, and whilst his wife has an estranged sibling presumed to be living in China with whom she has had no contact for some time, her only close relatives in her vicinity, her parents, had both passed away by the time the primary application in this matter was lodged.

The issue before the Tribunal therefore is whether or not it can be established on the available evidence that Chun Fok is indeed the brother of Steven Fok. In this respect, it is indeed the case that the person bringing the application has an onus of proof to satisfy. The Tribunal has consistently held that such onus is in fact a "common sense burden of proof" not unlike that which normally applies in civil cases. (See Re: Saulog, V90/00052, 9/11/90). Thus the Tribunal is required to find that the evidence given by the applicant is, on balance, capable of satisfying the legal requirements. The view of the previous decision-makers was that the principal had not successfully discharged this onus, given the presence of certain factual irregularities in the applications themselves. In their evidence and arguments before the Tribunal, the applicant and his family have attempted to "explain such irregularities away".

The issue of determining credit remains a question of fact to be resolved from the evidence before the decision-maker (see Re: Canangga S90/00066, 5/12/90). Further, it is well established law that an administrative tribunal must base its decision on evidence which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. Implicit in this principal, as Deane J. set out in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1988) 4 ALD 139 at 160:

"...are both the requirement that the findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are an issue, ordinarily be based on such findings of material fact and not on mere suspicion or speculation."

In the matter of Broussard v Minister of Immigration, Local Government and Ethnic Affairs (1989) 19 ALD 477, it was held that where the only evidence before the Tribunal was the claims of the applicant and there is nothing to contradict those claims, the Tribunal may promptly treat those claims as having probative value. However, where there is conflicting evidence, a Tribunal may not simply discount the claims of the applicant. Rather it must reach firm conclusions about those facts relevant to its decision. This latter point was made in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon and Another (Federal Court 8/5/90) per Northrop, Willcox and French JJ, at pages 9 & 10. Thus, it is evident that where there exists conflicting evidence as to an applicant's credit, a decision-maker must make a clear finding as to what he or she considers the relevant facts to be.

The findings made by the previous decision-makers with respect to the alleged discrepancies in the evidence provided by the applicant were not put to the family for comment. Rather, it was held somewhat arbitrarily that the inconsistencies were tantamount to an inability on the part of the applicant to prove his case on balance. Thus, the previous decision-makers had not drawn firm conclusions in respect of credit by making definite findings of fact in the disputed areas. Bearing this in mind, the Tribunal determined to write to the State Director of the Department and invite a submission on the question of the applicant's evidence countering the previous findings. The Department was given one month by the Tribunal in order to prepare such submissions. It was clearly indicated that, were such submissions not forthcoming within the required period, then the Tribunal would continue with its determination.

No submission was forthcoming from the Department. Thus no attempt was made by the Department to rebutt the evidence put before the Tribunal by the applicant in explanation of the alleged discrepancies highlighted by the previous decision-makers.

I have considered at length the evidence before the Tribunal in this matter. In particular, I have studied the evidence aimed at explaining the alleged discrepancies. I find that evidence credible. I find that the evidence has sufficient weight to, on balance, discharge the evidential onus required. In this respect, I specifically find that Chun Fok is the brother of Steven Fok. The discrepancies produced by the inconsistency in dates and names I accept arose on the basis of the family's deliberate efforts to conceal and change the identity of the principal, firstly to enable him to avoid conscription during the latter stages of the Vietnam war, and secondly by his own efforts to enable him to secure permanent residence in Hong Kong under an alias. I accept therefore that the overlooking of these matters in the preparation of the application highlighted the inconsistencies. I accept also the explanation with respect to the date of marriage of the principal and his spouse, and his place of birth.

In summary, on the basis of these findings, the principal has successfully established that he is able to satisfy the definition of remaining relative as it appeared in Regulation 9 at the relevant date. It was on this basis that the Tribunal referred the file back to the Department in order for further processing to take place. The Tribunal was advised by the Department subsequently that Chun Fok and his family had met the requisite health (H'), public interest (D), and assurance of support (B) requisites. On this basis, I find also that mandatory criteria C and E have also been met.

The principal has now met all of the prescribed criteria for grant of a preferential family visa on remaining relative grounds.

The Tribunal sets aside the decision made by the primary decision-maker on the 2nd May 1991, and substitutes a decision that the principal Chun Fok be granted a visa of the preferential family class (104) on remaining relative grounds.

I certify that this and the 11 preceding pages are a true copy of the Decision and Reasons for Decision of Mr. Michael Radin, Presiding Member of the Tribunal.