Adzraku (Migration)

[2017] AATA 484

Adzraku (Migration) [2017] AATA 484 (9 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr James Mawusi Adzraku

VISA APPLICANT:  Miss Portia Cecilia Adzraku

CASE NUMBER:  1607035

DIBP REFERENCE(S):  2015074907

MEMBER:Michelle Grau

DATE:9 March 2017

PLACE OF DECISION:  Brisbane

DECISION:The tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 09 March 2017 at 7:19pm

CATCHWORDS

Migration – Child (Migrant)(Class AH) visa – Subclass 101 – Sponsor father of applicant – No DNA evidence provided – No previous reference to daughter – Not a step-child – Not adopted

LEGISLATION

Migration Act 1958, ss 65, 359C 360(3)
Migration Regulations 1994, Schedule 2 – cl 101.211, 101.211(1)(a), 101.221

r.1.03

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 11 March 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act). A copy of the delegate’s decision was attached to the review application.

2. The visa applicant applied to the Department of Immigration for the visa on 24 February 2015. 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 (the Regulations). Relevantly to this case, they include cl.101.211.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicant (Portia) was the child of the review applicant, Mr Adzraku.

5. The review applicant was represented in relation to the review by his registered migration agent.

   Tribunal requests review applicant to advise if intends to obtain DNA

6. On 10 January 2017, the tribunal wrote to the review applicant offering the opportunity to provide DNA evidence of the biological relationship between the review applicant and Portia Cecilia Adzraku. Information about DNA collection, a consent form and a form to indicate whether the review applicant wished to provide DNA or did not intend to provide DNA evidence was attached. The review applicant was asked to respond by 1 February 2017. The form was not returned and there was no response by 1 February 2017.

   S359(2) (and s359A) correspondence

7. On 9 February 2017 the tribunal wrote to the review applicant pursuant to s.359(2) and s359A of the Act, inviting the review applicant to provide DNA information that the review applicant and visa applicant were related. The tribunal also provided adverse information for comment that noted DNA evidence had been requested previously a number of times to establish the relationship between the review and visa applicant to substantiate claims they were father and daughter.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 23 January 2017, the tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the tribunal to give evidence and present arguments.

9. On 14 February 2017 the migration agent informed the tribunal the review applicant would prefer to withdraw his application at this time as the child’s mother is not agreeing to provision of DNA. On 16 February 2017, the tribunal sent a withdrawal form to the agent for completion. It was not returned.

10. On 22 February the agent informed she was trying to get instructions and sought an extension of 7 days.

11. On 23 February 2017, a tribunal case officer telephoned the agent a number of times and left messages with the agent’s staff that it needed information about the request for extension.  The agent did not return the phone calls but sent an email that the review applicant would attend the hearing and forward the form shortly. On 23 February the tribunal informed the agent by email that the request for an extension of time to respond to s359(2) was not granted.

    Reasons for declining request for extension of time

12. The tribunal declined the request for extension to respond to s359(2) ands359A letter because of the circumstances of the case and the tribunal considers the review applicant has had many opportunities to provide DNA information both by the department and at review. For instance, the review applicant was requested to provide DNA evidence on 28 August 2015 by the department. The agent requested further time and then advised on 29 September 2015 that DNA collection was being arranged. Further follow up emails in December 2015 and February 2016 (5 and 10 February) were sent to the review applicant requesting updates on DNA collection. On 10 February 2016 the review applicant informed immigration that the family were not agreeing to DNA.

13. The tribunal also made a number of requests for the review applicant to indicate if DNA information would be collected. For instance, on 10 January 2017, the tribunal requested the review applicant indicate whether he intended to take steps to provide DNA information (eg. DNA information letter and form to advise if will provide DNA) by 1 February 2017. However, the review applicant failed to respond to that request or return the form.  The tribunal left a message on 2 February 2017 with the review applicant’s agent asking whether the review applicant proposed to obtain DNA evidence.  On 14 February 2017 the review applicant’s agent then informed that the review applicant ‘preferred’ to withdraw and is unable to provide DNA as the child’s mother is not agreeing to the process. However, the review applicant did not provide the signed withdrawal form as requested by the tribunal. Then the agent informed she had trouble obtaining instructions. The agent then did not respond to calls about the extension of time, other than to say the review applicant intended to attend the hearing.

14. Given these circumstances, the numerous requests for DNA information in this case and the failure to provide advice about the review applicant’s intentions regarding DNA collection or provision of DNA information , the tribunal considered it reasonable to decline to grant an extension to provide information.  While the tribunal accepts the review applicant may not have been able to provide DNA evidence within a short time, the review applicant had been requested to provide that evidence a number of times by the department  over 6 month period and had eventually declined. The review applicant has also had opportunities before the tribunal to indicate his intention and to provide evidence. The review applicant has had since August 2015 to provide DNA information. The tribunal considers the review applicant has had numerous opportunities to provide DNA evidence or his intentions to provide DNA. Further, it was evident that the review applicant’s intentions to provide DNA evidence or continue with the application has vacillated. Initially, indicating he would provide DNA, but later declining. Further, the review applicant considered  or “preferred” withdrawal of the application, but did not provide it in writing. The tribunal considers the review applicant has been afforded many opportunities to provide information and respond to requests to indicate his intentions in writing, but he has not been forthcoming.  In these circumstances the tribunal considers it is reasonable to decline the request for an extension of time.

15. On 24 February, the tribunal informed the review applicant, via his agent, that the hearing had been cancelled. The agent noted she had sent an email on 23 February confirming the review applicant’s attendance at hearing and yet the tribunal claimed no response was received.

16. The tribunal case officer explained in writing and by phone that the hearing was cancelled because there was no response to the information requested. The tribunal does not accept a response that ‘the applicant is attending the hearing’ is response to the information requested.

17. At time of decision, nothing further has been received.

18. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the tribunal.

19. The review applicant did not provide the information within the prescribed period.

20. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether Portia is the dependent child of James Mawuzi Adzraku. The issue also is whether the Portia is sponsored by an eligible person ( ie. parent or spouse of parent.)

22. 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).

23. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

24. Dependent child is specifically defined in r.1.03 as follows:

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

25. Portia, the visa applicant, claims to be the daughter of the review applicant, Mr Adzraku.

26. A birth certificate was provided which showed that the visa applicant was born in Ghana in 1999 and her father was Mr Adzraku. However, the birth certificate was only issued in 2011.  Further, it was evident that the Mr Adzraku had not declared his daughter in previous visa applications (referred to in delegate’s decision).

27. Given concerns about the relationship, DNA evidence was requested by Immigration to establish the relationship. DNA evidence was requested a number of times on 28 August 2015, 15 December 2015, 5 February 2016 and 10 February 2016. No DNA evidence was provided. Further, the migration agent informed that Portia’s family were not agreeing to DNA testing.  The delegate therefore refused the application as she was not satisfied of the claimed relationship.

28. At review the tribunal also requested that the visa applicant and review applicant provide DNA evidence.  A request form with information about the procedure and consent to undertake it was sent on 11 January 2017 (letter dated 10 January 2017) for a response by 1 February 2017. No response was received.

29. On 2 February 2017 a case officer left a message with the agent about the DNA response. On 9 February 2017 the tribunal sent a s359(2) ands359A letter requesting the review applicant provide DNA information establishing the relationship.

30. Given the birth certificate was recently issued and that the Mr Adzraku had not referred to having a daughter in his prior 2009 visa application, the tribunal places no weight on the birth certificate. Further, given reluctance to provide and lack of DNA evidence of the biological relationship the tribunal is not satisfied that Portia is daughter of the review applicant, Mr Adzraku.

31. Further, there is no evidence the visa applicant is his step-child. To meet the definition of step child the Mr Adzraku would need to have a parenting order in force under the Family Law Act 1975 or guardianship or custody in respect of the visa applicant under a Commonwealth, State or Territory law, or a law in force in a foreign country. There is no evidence this is the case.

32. Accordingly, the tribunal finds the visa applicant does not meet the definition of child or step-child.

33. Accordingly, cl.101.211(1)(a) is not  met at the time of application or decision. Therefore the visa applicant does not meet cl 101.211 and cl. 101.221.

34. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.

35. The tribunal has also considered the alternative subclasses of the Child (Migrant) (Class AH) visa. However, there is no evidence the visa applicant was adopted by the review applicant in accordance with r.1.04 or that she is an orphan relative.  Therefore the visa applicant does not meet the criteria for other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Michelle Grau
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Child visa

    …101.211

    (1)  The applicant:

    (​a)  is a dependent child of:

    (i)  an Australian citizen; or
    (ii)  the holder of a permanent visa; or
    (iii)  an eligible New Zealand citizen;…

    step-childin relation to a parent, means:

    (a)  a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or
    (b)  a person who is not the child of the parent but:

    (i)  who is the child of the parent's former spouse or former de facto partner; and
    (ii)  who has not turned 18; and
    (iii)  in relation to whom the parent has:

    (A)  a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
    (B)  guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.03     Definitions

    …

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

    …