1513939 (Migration)

[2016] AATA 3739

1513939 (Migration) [2016] AATA 3739 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Augustine Ejike Okereafor

VISA APPLICANTS:  Miss Chinonye Assumpta Okereafor
Master Chikwado David Okereafor
Miss Oluomachi Judith Okereafor

CASE NUMBER:  1513939

DIBP REFERENCE(S):  OSF2014/052159

MEMBER:Kira Raif

DATE:20 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations

Statement made on 20 April 2016 at 3:28pm

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 Immigration on 7 October 2015 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Nigeria, born in 2002, 2003 and 2007 respectively. They applied for the visas on 25 April 2014. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant were orphan relatives of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 20 April 2016 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

5. Clause 117.212 requires that at the time of application the visa applicant is sponsored by the Australian relative or the Australian relative’s spouse or de facto partner. The Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. The sponsor must have turned 18, and be a settled Australian citizen, settled Australian permanent resident or settled eligible New Zealand citizen.

6. The term ‘relative’ is defined in r. 1.03 as follows

   relative, in relation to a person, means:

   …

   (b)in any other case:

   (i)a close relative; or

   (ii)a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

   Does the visa applicant meet the sponsorship requirements?

7. The visa applicants were sponsored in their application by Mr Augustine Ejike Orereafor, who is an Australian citizen. They stated on the forms that their biological parents were deceased. Death certificates were submitted with the application.

8. The application was accompanied by an affidavit made by Mr Lawrence Emeka Okereafor who states the following. Mr Okereafor states that Onyenachi Okereafor, who is his sister, was married to Chukwuma Charles Okereafor. Onyenachi Okereafor died in May 2007 and Chukwuma Charles Okereafor died in December 2010. They had three children, the visa applicants. Upon the deaths of their parents, the responsibility for taking care of the children fell on the family of late Sabinus Okereafor. In January 2011 the family of Sabinus Okereafor resolved that Augustine Ejike Okereafor (the review applicant) take the responsibility for the children, including for their general welfare, upkeep and custody.

9. The delegate noted that the sponsor failed to provide official court documents granting him custody of the visa applicants. The review applicant explained to the Tribunal that there was no need for formal custody arrangements because there was no dispute in the family about the responsibility for raising children. The review applicant was given the responsibility by the family to care for the children and he has willingly adopted that responsibility and has been providing financial support to the children, so there was no need to seek formal court orders. The Tribunal accepts that evidence and notes that formal custody is not required of the purpose of r. 1.14.

10. The delegate was not satisfied that the review applicant was a relative of the children. The delegate noted that the Birth Certificate relating to the review applicant’s father has not been provided and that the document from the National Population Commission cannot be used in lieu of the birth certificate. The delegate noted concerns about the authenticity of the document, although no information has been offered as to why the document was considered to be inauthentic. In the absence of any probative or detailed information about the document lacking authenticity, and in the absence of any inquiries or research showing the document to be inauthentic, the Tribunal cannot find that the Birth Certificate is not an authentic document.

11. The delegate was not satisfied that the sponsor was the uncle of the visa applicants. In his written submission to the Tribunal dated 8 January 2016 the review applicant disputes the factual findings of the delegate. In particular, the review applicant relevantly notes that it was never claimed that he was the brother of the visa applicants’ biological father Chukwuma Charles Okereafor. Rather, it is stated that the children’s biological father, Chukwuma Charles Okereafor was married to the sister of the sponsor and the relationship between them is that of brothers in law.

12. The delegate placed significant weight on the fact that the sponsor had not declared any siblings in his own application made in 2005. The review applicant explained in oral evidence to the Tribunal that he made three visa applications. He said he made the first application for an Occupational Trainee in Lagos in 2003 and in that application he did mention his siblings. The applicant said that the application had been destroyed and he could not provide a copy of it. The review applicant said that his second application was for the Prospective Marriage visa and in that application he did not mention the siblings because he thought it was not relevant to do that and also because that he had already mentioned them previously. Although the Tribunal is not convinced that either is a good excuse for not providing full information required by the application form, the Tribunal accepts that the review applicant’s failure to mention his siblings in his Prospective Marriage application is not an indication that the siblings did not exist. The review applicant said in his Partner visa application made around 2008 he did mention the siblings. If the information on the application form was sufficient for establishing relationship, then the fact that the review applicant mentioned his siblings in the first and last visa applications should be given as much weight in determining that such siblings exist as the fact that he failed to mention the siblings in his second application.

13. The Tribunal draws no adverse conclusion from the fact that the review applicant failed to mention his siblings in his second visa application. The fact that the visa applicant referred to his siblings in his first and last visa applications, in addition to the documentary evidence of relationship and the applicant’s evidence to DNA testing in relation to another sibling, satisfy the Tribunal that the sibling relationship existed. The Tribunal is satisfied, on balance, that the review applicant is the brother of the children’s mother. He is therefore the uncle and a relative of the visa applicants.

14. The Tribunal is satisfied that the visa applicants had not turned 18. They have no spouses or de facto partners. The Tribunal is satisfied they are nieces and nephews of the sponsor and are ‘relatives’. The visa applicants meet r. 1.14(a). Death certificates relating to their parents have been submitted and the Tribunal is satisfied the visa applicants cannot be cared for by either parent because each of them is dead. The Tribunal is satisfied the visa applicants meet r. 1.14(b).

15. There is no evidence before the Tribunal that the grant of the visa would not be in their best interest. The review applicant’s evidence to the Tribunal is that he has been providing financial support to the children and will continue to do so. The Tribunal is satisfied there are no compelling reasons to believe that the grant of the visa should not be in the best interests of the children. The visa applicant meet r. 1.14(c) and he definition of ‘orphan relatives’.

16. The Tribunal is satisfied that the visa applicants are orphan relatives of an Australian relative. The Tribunal finds that they meet cl. 117.211.

    Conclusion

17. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member