Agbahowe (Migration)

[2018] AATA 4489

Agbahowe (Migration) [2018] AATA 4489 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Faith Orovbo Agbahowe

VISA APPLICANT:  Mr Solomon Idirhe

CASE NUMBER:  1616834

DIBP REFERENCE(S):  F2015046063

MEMBER:Mary Urquhart

DATE:17 September 2018

PLACE OF DECISION:  Melbourne

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

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

·Statement made on 17 September 2018 at 1:20pm

CATCHWORDS
MIGRATION – Child (Migrant) Class AH) – Subclass 117 (Orphan Relative) – Australian relative – DNA testing – applicant and sponsor half siblings – no parental care – father whereabouts unknown – death certificate provided for mother – applicant cared for by uncle – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14 Schedule 2 cls 117.111, 117.211, 117.221

CASES

Nguyen v MIMA (1998) 158 ALR 639

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 13 September 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 March 2015. At that time, 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.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because not satisfied the sponsor and applicant was related as required.

5. The review applicant appeared before the Tribunal on 17 September 2018 to give evidence and present arguments.

6. The review applicant was represented in relation to the review by her registered migration agent.

7. On 1 May 2018 the Tribunal wrote to the review applicant providing an opportunity for the DNA testing regarding the claimed relationship between the review applicant and the applicant.

8. On 13 June 2018 the Tribunal received DNA testing results from Genomic Diagnostics dated 8 June 2018.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is a relative of the sponsor as defined and if so whether he meets the remaining criteria for the grant of an Orphan relative visa.

11. The visa application was made on the basis that the visa applicant Solomon Idirhe is the orphan relative of the review applicant, Ms Faith Orovbo Agbahowe who he claims is his sister.

12. The applicant born 21 April 2000 is a Citizen of Nigeria. The evidence is that he and the sponsor share a mother in common.

13. The applicant claims in his application that his father’s whereabouts is unknown. However, a death certificate for his father was submitted. It is claimed his mother is deceased. A death certificate has been provided in relation to his mother.

    Is the visa applicant an orphan relative of an Australian relative?

14. Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl.117.211 (a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.117.211 (b)). The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl.117.221.

15. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): r.1.03. In the present case, the applicant’s claimed half-sister (the sponsor) is the claimed relevant Australian relative.

16. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211 (a) is met, and continues to be met at the time of decision (cl.117.221).

    Age – r.1.14 (a) (i)

17. Regulation 1.14(a) (i) requires that the visa applicant has not turned 18. On the basis of evidence (a birth certificate) provided with the application the Tribunal is satisfied that the applicant had not turned 18 at the time the application was lodged. Accordingly r.1.14 (a) (i) is met at the time of application and continues to be met at the time of decision.

    Spouse or de facto partner – r.1.14 (a) (ii)

18. Regulation 1.14(a) (ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence nor do any claim that the visa applicant has a spouse or de facto partner. In the absence of evidence to the contrary the Tribunal accepts that the applicant did not have a spouse or de facto partner at the time of application.

19. The Tribunal accepts that the visa applicant continues not to have a spouse or de facto partner at the time of decision. Accordingly, he meets r.1.14 (a) (ii) at the time of application and continues to meet the regulation at the time of decision.

    Relative – r.1.14 (a) (iii)

20. Regulation 1.14(a) (iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

21. The delegate at first instance records that on 15 June 2016 request was sent through an authorised recipient for the sponsor to provide documents to show her relationship to the applicant i.e. a full birth certificate.

22. In her response on the 25 July 2016 the sponsor stated in a statutory declaration that “Solomon Idirhe born 21/04/2000 is my brother born of the same mother who has deceased. I do not have my birth certificate to prove this." She then states “I am happy for a DNA test to be conducted”.

23. At the hearing the sponsor gave evidence that she was not given the opportunity for the DNA test she had clearly indicated she and the applicant would undertake before the delegate made his decision.

24. In relation to DNA the sponsor gave evidence that she travelled to Nigeria in October 2017 and organized for DNA testing to provide to the Tribunal. As well, in 2018 she was invited by the AAT Tribunal to undergo DNA testing which she and the applicant did with a certified DNA testing organization.

25. The Tribunal received a DNA report by Genomic Diagnostics dated 8 June 2018. It indicates strong support for the claim that the sponsor and applicant are related as biological half siblings. (See Tribunal folio 38-39).

26. The delegate referred to previous departmental records and noted that there it appears that the sponsor provided a full birth certificate in support of the Medical Practitioner visa application made in 2003.

27. Asked about this at the hearing the sponsor explained that she came to Australia as a secondary applicant on her brother Soloman’s medical Practitioner visa. She said she was 15 at the time and did not have knowledge of the documentation that is any birth certificate provided or required for that visa. She gave evidence that in any case she has no access to such document and no longer is in contact with her brother. The Tribunal accepts her explanation as plausible.

28. The Tribunal notes and has considered the photographic evidence of the applicant and sponsor submitted with the application.

29. The Tribunal notes the application was refused on the basis of the lack of evidence as to the claimed relationship. The Tribunal now has independent evidence regarding the claimed relationship. The Tribunal relies on the report of Genomic Diagnostics to find the relationship between sponsor and visa applicant is made out. Accordingly, r.1.14 (a) (iii) is met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14 (b)

30. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

31. The Tribunal has considered the death certificates provided for the visa applicant’s parents and the evidence regarding how they were obtained. This includes a copy of an affidavit as to Death sworn at the Magistrates Court of Effurun on 25 September 2014 by the brother of Mr. Ununotova Arumuowa of the deceased,  Madam Rita Ediluo Arumuowa mother of the sponsor and visa applicant.

32. At the hearing evidence was given regarding the circumstances of the claimed death of the applicant’s parents. The sponsor said their mother died of AIDs in 2005. She returned to her own mother in her home village, Isokoetevie, to be cared for by her mother. She said their mother is buried in her grandmother’s compound. She gave evidence of visiting the burial place last year and described the grave.

33. The sponsor explained that their mother and the applicant’s father separated when their mother returned home to be looked after prior to her death. She said the applicant’s father also had AIDS. Until a death certificate was obtained for him the sponsor and applicant were unaware of his whereabouts but knew he was deceased.

34. The sponsor gave evidence that the visa applicant was abandoned by his father when his father became ill. The visa applicant was taken into the care of Mr. Ununotova Arumuowa, a maternal uncle. A Customary Courts document dated 8 October 2014 granting custody/guardianship of the visa applicant to Mr. Ununotova Arumuowa has been submitted.

35. A problem in this case is that some documents from Nigeria (death certificates) are based on self-reporting and are, for this reason, somewhat unreliable.  It follows then that any assessment of evidence relies to a large extent on the credibility of the parties concerned.  In this application the Tribunal records it found the sponsor to be a reliable and credible witness and on this basis is prepared to accept the documentation together with her evidence which expanded on the relevant circumstances. As well, in this case, the Tribunal notes the delegate’s concern in refusing the application was focused on the lack of evidence of the relationship between visa applicant and sponsor, an issue now resolved with DNA testing.

36. In all the circumstances the Tribunal is prepared to accept that the visa applicant cannot be cared for by either of his parents because each of them is either dead, permanently incapacitated or of unknown whereabouts. Accordingly, r.1.14 (b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

37. The visa applicant is now 18 years old; he has been undertaking an apprenticeship in carpentry and plumbing under the care of his maternal uncle. The Tribunal finds no evidence or compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant.

38. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

39. Given the findings above, cl.117.211 is met.

40. The Tribunal finds that the visa applicant continues to satisfy the criterion in cl.117.211. It follows that cl.117.221 is met.

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

    DECISION

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

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Mary Urquhart
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)the applicant:

    (i)has not turned 18; and

    (ii)does not have a spouse or de facto partner; and

    (iii)is a relative of that other person; and

    (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.