1911413 (Migration)

[2022] AATA 2293

1911413 (Migration) [2022] AATA 2293 (20 May 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1911413

MEMBER:  David Crawshay

DATE:  20 May 2022

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 20 May 2022 at 12:06pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –– parties have not provided DNA evidence – an inconsistency concerning the composition of the review applicant’s family – not satisfied that the visa applicant was the biological child of the review applicant at the time of application – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 101.211, 101.221

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 11 February 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The visa applicant applied for the visa on 13 October 2017. 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).

1. 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, which requires among other things for the visa applicant to be the child of the review applicant at the time of application.

1. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied based on the evidence that the visa applicant was the child of the review applicant.

1. The review applicant appeared before the Tribunal on 26 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The hearing was conducted remotely by means of Microsoft Teams video. The parties appeared from the same house in Cameroon.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the visa applicant is the daughter of the review applicant.

Dependent child criteria

1. 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).

Child-parent relationship

1. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

1. The review applicant claimed in his Form 40CH sponsorship form dated 26 October 2017 that he was sponsoring the visa applicant as his “natural child”. No other claim of parentage (i.e. step-parent, adopted parent) has been made.

2. In her decision to refuse the visa, the delegate stated that there were “minimal documents” provided to substantiate the claimed relationship. The delegate also stated that the Department offered for the parties to undertake DNA testing but this was not done. The delegate stated that the reason given by the review applicant for not doing so was because the visa applicant was missing and was unable to travel to Nigeria with her sister [Ms A].

1. At hearing, the Tribunal asked the review applicant if there was any reason for not getting DNA testing done, and he replied that there were difficulties at the time when he received the request. He said that the tests were not being carried out in Cameroon. He said that the logistics meant that it would have been impossible, and he could not afford it.

1. The Tribunal put to the review applicant country information that Cameroonians can now leave and return. He replied that that was correct, but there are very strict conditions and people from the Angophone region would need protection. He said that it would be difficult for those from the Anglophone region as they are being targeted by the forces and government officials. He said that they would need to have some kind of political “back-up” to navigate through the airport.

1. A discussion ensued about whether the visa applicant could undergo DNA testing in Cameroon itself. The review applicant told the Tribunal that they would need to travel to the French part of Cameroon in order to fly out of the country. It has since learnt that DNA testing in Cameroon is not possible and the visa applicant would need to travel abroad.

1. The review applicant said that the visa applicant has suffered enough and gone through a lot, including being kidnapped. He said that he was not ready for her to start going through the process because he had been through it before and knew how hard it was. He said that he was not willing to put the visa applicant into a situation that he could not control. He said that he had thought the process for [Ms A] would only take a week but the whole process took three months. He said that [Ms A] had to stay in Lagos until she flew to Australia. When pressed on the claim about the process taking three months and whether it could be separated out into the time taken for DNA testing, health tests, and the time that she spent in Lagos between being cleared to go to Australia and her departure from Lagos, the review applicant said that he was not sure because he was in Australia at the time but he thought that it was because of logistics and the system itself.

1. The Tribunal put to the review applicant that the visa applicant could undertake the DNA test within the time that he was over in Africa. In this regard, it notes that the review applicant was due to leave Cameroon in July 2022. In response, he said that he thought that he had given everything he needed to. The Tribunal put to him that he would have known about the requirements for DNA because of the process for [Ms A], and he confirmed that this was one of the requirements to prove that [Ms A] was her daughter. The Tribunal put to him that he would have ample time to be able to go with the visa applicant to wherever he needed to go for the DNA testing, and that this was a situation that he could control to some extent. The review applicant said that he had no objections and would have to try.

1. The Tribunal put to the review applicant that it was asking for the DNA testing because it had concerns about the documentation up to that point,[1] and about the fact that DNA testing had not been conducted up to this point. The review applicant (through his representative who it notes was not attached as a party and appeared as a support person) told it that the review applicant had lodged a Freedom of Information request in respect of his protection visa application. He said that the review applicant had not received a response to this request.

   [1] At hearing the Tribunal suggested that no birth certificate had been provided. This is wrong, as one appears on the Department file. However, as below, it is not satisfied of the parties’ relationship based on this documentation alone.

1. The Tribunal again asked the review applicant if he was willing to go through the process for DNA testing, and he said that he would. It told him that it would send through a DNA testing request letter. On 27 April 2022, the Tribunal sent the review applicant a letter requesting DNA evidence by 18 May 2022. As at the time of this decision, which is after the due date, no response has been received by it nor any request for extension of time.

1. Later in the hearing, the Tribunal asked the review applicant about the circumstances surrounding the claimed kidnapping of the visa applicant. He said that it happened two years ago. It asked him when he heard that she was missing, and he replied that he did not have the date. When asked if he knew the month and year, he replied that it was in 2020 but did not know the month. The Tribunal asked him when the visa applicant was released, and he said that it was in the same year, about six months later. When asked who kidnapped her, he said that it was the “Amba Boys”. When asked why they kidnapped her, he replied that he was not sure, but if they find someone going to a place on a certain day they will kidnap them. The review applicant said that the ransom was 1.6 million in the local currency (Central African CFA franc). He said that she was released to the church in the week when he paid the sum of money. He said that the church helped to mediate the situation.

1. The visa applicant spoke to substantially the same details as the review applicant in relation to the kidnapping, stating that she was taken by the Amba Boys in 2020, held for six months and released after 1.5 million francs was paid. However, the Tribunal became concerned that the visa applicant had listened to the review applicant’s testimony (and thereby disregarded its request that she leave the room while he was doing so). This concern was based on an answer she gave to its opening question about why she was unable to have DNA testing done, wherein she replied, “As my father said before …”. The Tribunal is not convinced by the visa applicant’s explanation for saying this – namely, that the statement to which she was referring was said years ago when her sister travelled to Australia. The Tribunal diminishes the weight that it would otherwise give to this evidence as it is not satisfied that it was given in a spontaneous manner and was unaffected by what the visa applicant heard from the review applicant. Given the little weight that can be accorded to it, the Tribunal finds that this evidence is not sufficiently probative to corroborate the review applicant’s account of the events surrounding the claimed kidnapping of the visa applicant.

1. The Tribunal put to the review applicant a perceived inconsistency between what he had told it at hearing and information provided elsewhere regarding the claimed kidnapping. Specifically, it put to him that he had previously stated in an email of 4 July 2020 that a ransom was paid in October 2019 for the visa applicant to be released and yet he had told it at hearing that she was kidnapped in 2020. The review applicant responded by saying that October 2019 was almost at the end of the year and that he did not keep dates. He said that he was going through a lot, as it was the year that he lost his father. He said that his memory was not very good as he is [age] years old. The Tribunal told him that it found it implausible that he would get the date of the visa applicant’s kidnap so wrong if she were in fact kidnapped. The review applicant said that he did not know what to say, but that this happened.

1. At another stage during the hearing, the Tribunal asked the review applicant to state how many children he had in 2008 (when he arrived in Australia), and he replied that he had four

   – three girls and one boy. The Tribunal at this stage put to him that he had stated that he had two girls and two boys at this point in an email titled “A father’s wish” and dated

   24 August 2020 and asked him to explain this perceived inconsistency. The review applicant paused, upon which the Tribunal repeated the inconsistency. After another pause, he told it that he had got mixed up because he had another daughter in Australia called [Ms B].

1. The Tribunal has also considered written evidence on the Department and Tribunal files. It accepts that a birth certificate was issued in respect of the visa applicant, although it also notes that this certificate was issued in 2011 or [number] years after her birth. For this reason, the certificate and a letter signed by the First Deputy Mayor in February 2018 in support of its authenticity are given little weight.

1. The Tribunal has considered that photographs of the parties with [Ms A] only go to prove that they knew each other. They are not, of themselves, probative of the relationship between the parties.

1. Evidence of remittances being paid by the review applicant to the visa applicant proves that he has provided financial support to her. However, the Tribunal is not satisfied that they are, by themselves, probative of the claimed father-daughter relationship between the parties. There are other plausible reasons for their payment, including that the review applicant is providing support to the visa applicant as her relative (but not her father).

1. The Tribunal has considered evidence in the form of various letters and affidavits from family members, church and other officials from Cameroon and Australia, doctors and the review applicant’s solicitor which attest to the nature of the parties’ relationship. It acknowledges that some of these letters date back to 2012. However, there is no evidence, at least in terms of the letters written by the doctors, the review applicant’s solicitor, and the church and other officials, that the authors knew the [family] at the time when the visa applicant was born and are therefore able to attest to her being the biological child of the review applicant on this basis. In relation to the affidavit written by members of the review applicant’s family and dated 20 February 2018, there is no evidence to attest to the authors’ identities and whether they are related to the review applicant in the way claimed by them. In relation to the undated letter written by [Ms A], the Tribunal notes that she was born five years after the visa applicant and so is not able to attest to the visa applicant being the review applicant’s biological daughter through any first-hand knowledge. For these reasons, the Tribunal accords this evidence little weight.

1. Lastly, a criminal record check from Cameroon dated 25 January 2018 in respect of the visa applicant lists the visa applicant as being her father. This document is given very little weight as evidence of the claimed father-daughter relationship, however, as it is not clear what, if any, verification checks took place prior to its being produced.

1. Turning to the testimony of the parties at hearing, the Tribunal finds that the review applicant’s claim about the visa applicant being kidnapped lacks credibility. While this is a grave finding to make, it is based on the clear inconsistency between the dates when she was allegedly kidnapped – which vary significantly between the review applicant’s written evidence and his oral testimony at hearing. The Tribunal does not consider that this inconsistency can be explained by reference to his age – in its view, [age] is not old enough that a regular male would experience memory loss and there is no evidence to show that the review applicant suffered from such memory loss. On the contrary, it finds that an event as traumatic as the kidnapping of a daughter would be easily remembered by a parent. It gives this evidence substantial weight of an adverse nature and prefers it to evidence from other sources such as from [Ms A] in her undated letter and from the church who claims to have helped with the payment of the ransom. It also prefers this evidence to evidence suggesting that a large money transfer took place in October 2019 to pay for the ransom. Although the sum is substantially larger than others around it, there may be other plausible reasons for this that do not relate to the payment of a ransom.

1. The issue of whether the visa applicant was kidnapped would not otherwise be relevant except that her disappearance was a reason for declining the first offer for DNA testing. The parties have since either sought to delay the collection of DNA data (in June 2020) or not respond at all to a request (in March 2022). While it is plausible that it would have been unreasonable to have expected testing to have taken place in June 2020 given the COVID- 19 lockdowns, the Tribunal nonetheless detects a pattern of recalcitrance on the part of the parties based on the other refusals. The lack of response to its latest request for DNA testing, despite the review applicant having indicated at hearing that he would do so, is yet another manifestation of this recalcitrance. This evidence inevitably leads the Tribunal to draw adverse inferences about whether the parties are in fact related in the way claimed by them given that they have been unwilling on at least three occasions to test their relationship by reference to the objective measure of DNA.

1. The Tribunal also retains significant concerns about an inconsistency concerning the composition of the review applicant’s family when he left to come to Australia in 2008. It considers that his explanation for this inconsistency – that he had another daughter in Australia called [Ms B] – lacks coherence as it is clearly not relevant to the question of how many children he had before coming to Australia. It does not assuage its concerns. The Tribunal ultimately finds it inconceivable that the review applicant would not know who was in his family at the time when he left for Australia. It finds his confused evidence to be indicative of someone concealing the truth about a relevant fact.

CONCLUSION

1. The Tribunal has considered the above evidence and the findings made. It has considered and attached some weight to documentary evidence such as a birth certificate obtained (that it has noted above is not contemporaneous) and letters and affidavits that point to the visa applicant being the child of the review applicant, as well as the claims of the parties at hearing. However, it does not consider this evidence by itself to be sufficiently probative of the claimed relationship between the parties, especially when weighed against its concerns over the lack of DNA evidence up to that point and concerns regarding inconsistent statements made by the review applicant about the composition of his family.

1. For this reason, the Tribunal asked him at hearing if he was willing for the visa applicant to undergo DNA testing, to which he said that he was. On the basis of this, the Tribunal formally requested verification of the relationship through DNA testing post-hearing and provided the parties an opportunity to do so. However, as at the date of this decision, the parties have not provided DNA evidence or even evidence that they are taking steps to gather such evidence, nor have they requested an extension of time or made any further submissions about why it would be unreasonable to do so.

1. In these circumstances, the Tribunal finds that it has insufficient evidence to be satisfied that the visa applicant was the biological child of the review applicant at the time of application. Moreover, no claim was made that the visa applicant was a child of the review applicant by other means, such as by being a step-child or through adoption.

1. Accordingly, cl.101.211(1)(c) is not met at the time of application, and does not continue to be met at the time of decision under cl.101.221(2)(a).

1. 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

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

David Crawshay Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.03Definitions

…

dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.

…