Agboola (Migration)

[2024] AATA 3076

Agboola (Migration) [2024] AATA 3076 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kazeem Adewale Agboola

VISA APPLICANTS:  Ms Michelle Olamide Agboola
Miss Catherine Ibukunoluwa Agboola

CASE NUMBER:  2013334

HOME AFFAIRS REFERENCE(S):          OSF2016/075951
OSF2016/075952

MEMBER:Jason Pennell

DATE:16 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 16 August 2024 at 8.39am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant's home country permits the removal – consent from lawfully determined parents – biological mother is allegedly deceased – DNA test results – non genuine death certificate and court record provided – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 441
Migration Regulations 1994, Schedule 2, cls 101.211, 101.326; Schedule 4, Public Interest Criteria 4017; rr 1.03, 1.05

CASES

Huynh v MIMA [2006] FCAFC 122

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 12 August 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The visa applicants applied for the visas on 26 October 2016. 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 (Cth) (the Regulations). In this case cl 101.326 states that if the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.[1] Relevantly, cl 4017 and 4018 state:

[1] cl 101.326 Migration Regulations 1994 (Cth) – Schedule 2

4017

The Minister is satisfied of 1 of the following:

(a)   the law of the applicant's home country permits the removal of the applicant.

(b)   each person who can lawfully determine where the applicant is to live consents to the grant of the visa.

(c)   the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

4018   

The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

4.The delegate refused to grant the visas on the basis that cl 101.326 had not been satisfied due to the public interest criteria under cl 4017 and cl 4018 not having been met because he was not satisfied that the applicants’ biological mother is dead.

5.The review applicant appeared before the Tribunal on 8 March 2024 to give evidence and present arguments before Member Crawshay. Member Crawshay departed the Tribunal before finalising the review application. As a result, the review applicant was invited to a further hearing on 12 August 2024 at 10.00 am (‘the further hearing’) for the purposes of giving evidence and making any submissions in support of the review application. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) of the Act, the invitation has not been returned to sender.

6.On 9 August 2024 the Tribunal sent the review applicant a hearing reminder by SMS text which failed. The hearing reminder was sent to the mobile phone number provided to the Tribunal by the review applicant. The review applicant did not appear at the further hearing. As a result, the Tribunal has exercised its discretion to complete the review application without a further hearing being conducted.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

8.The review applicant was born on 21 June 1973 in Nigeria. He was granted a tourist visa (Subclass 676) in Korea under the name of Jerry Tshikani Ndlovu born 13 July 1978 and travelled on a South African passport.[2] The review applicant arrived in Australia on 29 May 2013 on a tourist visa.[3] National Identity Verification and Advice reviewed the review applicant’s identity and confirmed his identity to be Kazeem Adewale Agboola. While in Australia, the review applicant applied for a protection visa and obtained a partner visa on 19 September 2016.[4] The review applicant acquired Australian citizenship on 17 September 2019.[5]

[2]    Assessment Subclass 101 Child File No F2016/075951 Assessed 11 April 2018; Dept File No OSF2016075951

[3]    ibid

[4] ibid

[5] Delegate decision of record 12 August 2020; Dept file No OSF2016075951; Doc ID 7668980

9.The visa applicants claim to be citizens of Nigeria. Ms Michelle Olamide Agboola (MA) was born on 2 January 2010 in Lagos, Nigeria and Miss Catherine Ibukunoluwa Agboola (CA) was born on 18 October 2008 in Lagos, Nigeria. The review applicant claims to be the father of the visa applicants.[6] The review applicant provided the Department with birth certificates for CA and MA that stated that the review applicant and Stacey Folake Agboola (‘the visa applicants’ mother’) are the parents of each visa applicant. The Tribunal notes that birth certificates for each of the visa applicants were issued on 15 July 2013, being approximately 3 and 5 years after the birth of each visa applicant respectively. The review applicant’s evidence to the Tribunal was that in Nigeria it is unusual to apply for and obtain identification documentation such as birth and death certificates on time. Rather, it is the case they are only applied for and obtained at the time they are needed.[7] As a result, he sought the assistance of an agent in Nigeria to obtain the birth certificates for the purposes of making the application for the visa applicants.

[6] ibid

[7] ibid

10.On 14 September 2018 the visa applicants were invited by the Department to undertake a DNA test in support of their claims that they are each the child of the review applicant. The DNA test results supported the conclusion that the review applicant is the father of the visa applicants.[8]

[8] DNA Solution letter dated 22 November 2018 Dept file No OSF2016075951, Doc ID 7668980 pp. 118–122

11.The review applicant claimed that the visa applicants’ mother died on 15 February 2013. A copy of a medical certificate of cause of death dated 15 February 2013[9] was provided to the Department as evidence of Ms Agboola’s death (‘the death certificate’). On 19 December 2018, the National Population Commission of Nigeria (NPC) verified that the death certificate provided by the review applicant was not genuine. The review applicant was invited by the Department to respond to the NPC’s assessment of the death certificate not being a genuine document. In his response to the Department the review applicant did not dispute that the document was bogus. His evidence was that the document had been obtained by his family, through an agent of the NPC, at his request. He claims he merely passed it onto the Department.[10] The review applicant was not able to say specifically how or where the document was obtained. On 14 June 2019 the Orile Agege General Hospital verified that the death certificate provided by the review applicant was not authentic and misrepresents the hospital.[11] In response the review applicant claimed that he had instructed his bother to go to the NPC headquarters and obtain another death certificate. Based on the available documentation the Tribunal does not accept that the death certificate is genuine.

[9] Lagos State Government, Medical Certificate cause of death dated 18 February 2013 Dept file No. OSF2016075951 Doc ID 7668980

[10] Delegate decision of record 12 August 2020; Dept file No OSF2016075951; email dated 9 January 2019; Dept file No OSF2016075951 Doc ID 7668980

[11] Letter dated 14 June 2019 Dept file No OSF2016075951, Doc ID 7668980 p. 296

12.The review applicant subsequently provided the Department with a certified copy of a death certificate in the name of Stacey Folake Agboola issued on 10 September 2019 (‘the NPC death certificate’). The Tribunal has sought verification of the NPC death certificate as to the validity of this document but has not been able to obtain a response from the NPC.[12] In circumstances where the Orile Agege General Hospital states that it has been mispresented in relation to the death of Ms Agboola, the Tribunal does not accept that the NPC death certificate is a valid document.  

[12] AAT request for verification AAT file No 201334 Doc ID: 13275481

13.The review applicant claims that he was married to Lesley Ann Aitken-Andrews on 15 February 2014. He provided a copy of the marriage certificate dated 19 May 2014[13] as evidence of his marriage. Ms Aitken-Andrews provided a statutory declaration dated 27 September 2016[14] confirming that she is married to the review applicant and that she is the stepmother of the visa applicants. Based on the documentation provided the Tribunal accepts that the review applicant is married to Ms Aitken-Andrews as claimed.

[13] New South Wales, Marriage Certificate dated 19 May 2014 Dept file No OSF2016075951

[14] Statutory declaration by Ms Aitken-Andrews dated 27 September 2016 Dept file No. OSF2016075951

14.The review applicant claims that from about 2013 the visa applicants together with their older sister Abigael Folashade Agboola commenced living with his sister, Rasheedat Agboola (‘the review applicant’s sister’) in Lagos, Nigeria. The Department was provided with an affidavit sworn by the review applicant’s sister dated 31 January 2019[15] (‘the sister’s affidavit’) stating that the visa applicants’ mother died on 15 February 2013, and they had been living with her since 2013. Her evidence was that the review applicant had been taking care of the visa applicants’ needs since the death of their mother. The review applicant claims that he had been providing financial support of the care of the visa applicants. The review applicant provided a letter from the Department of Health and Human Services in Victoria dated 25 September 2017 (together with copies of his payslips) stating that he had been employed as a casual Disability Support Worker from 18 July 2017.[16]  In addition he provided the Department with letters of offer of employment from Australian Unity and Christies People together with tax returns for the financial years 2014, 2015 and 2016.[17] The review applicant did not provide any documentary evidence to the Department (such as bank statements showing money transferred and foreign currency exchange rates) of him transferring money to his sister in Nigeria as financial support of his children as claimed.

[15] Affidavit of Rasheedat Agboola dated 31 January 2019; Dept file No OSF2016075951

[16] Letter from Department of Health and Human Services in Victoria dated 25 September 2017 Dept file No OSF2016075951

[17] Applicant’s tax returns 2014, 2015 and 2016; Dept file No OSF2016075951 pp. 38–47

15.The review applicant claimed that a custody order had been made in favour of his sister and the sister’s affidavit confirmed that she had been appointed guardian of the visa applicants.[18] However, on 19 June 2019 in response to the Department’s requests for verification of the proceeding, the Lagos State Judiciary advised the Department that the court had no record of the proceeding and that the document verified by the Assistant Chief Registrar was not genuine.[19] The review applicant’s evidence to the Tribunal was that there was no proceeding but he had engaged a lawyer in Lagos for the purposes of having a Judge sign off on the contents of the document. It was pointed out to the review applicant that the document must be considered bogus as it falsely purported to be part of a court proceeding that did not exist. Therefore, based on the advice from the Lagos State Judiciary and the review applicant’s own evidence the Tribunal finds that no guardianship order was made in favour of the review applicant’s sister as claimed.

[18] Affidavit of Rasheedat Agboola dated 31 January 2019; Dept file No OSF2016075951

[19] Lagos State Judiciary 16 August 2019; Dept File No CLF202059951 Doc ID 12130639 pp. 299–300

16.The review applicant’s evidence was that the visa applicants are no longer in Nigeria. He claims that since 29 December 2019 they have lived in the United States of America. By an email to the Department dated 30 July 2020 the review applicant claims that he had provided copies of the tickets, boarding passes, and the visa applicants’ passports to the Department.[20] No boarding pass or tickets evidencing that the visa applicants had travelled to the United States as claimed were provided. However, the review applicant did provide a letter from Kenya Airways that listed the visa applicants as having tickets booked to the United States. The letter required confirmation of the booking details and requested payment for the airfares via a link provided.[21] Finally, copies of the United States Regular Visa issued on 18 December 2019 and entry stamp dated 29 December 2019 for each of the visa applicants was provided.[22] As a result the Tribunal accepts and finds that the visa applicants are in the United States as claimed.

[20] Review applicant email dated 30 July 2020; Dept file No OSF2016075951

[21] Kenya Air letter Dept file No OSF2016075951, p. 151

[22] Delegate decision of record 12 August 2020; Dept file No OSF2016075951

Supporting documentation

17.The review applicant provided the following documents in support of the application:[23]

[23] ibid

•Form 47SP listing the sponsor (the review applicant) as the parent.

•Form 40CH.

•Passport bio-data pages of the visa applicants.

•Passport bio-data page of the sponsor.

•Passport bio-data page of Ms Aitken-Andrews.

•Form 1229 signed by the sponsor and the sponsor's partner.

•Australia – National Police Certificate issued to Ms Aitken-Andrews on 29 September 2016.

•Tax returns for Mr Agboola – 2014, 2015 and 2016.

•Tax return for Ms Aitken-Andrews – 2015.

•Australian Federal Police stating that the sponsor was previously known as Jerry Tshikani Ndlovu (born on 13 July 1978).

•Visa Grant Notice, partner visa issued to Mr Agboola on 30 June 2014.

•Marriage certificate of Mr Agboola and Ms Aitken­Andrews issued on 19 March 2014.

•Medical Certificate of Cause of Death for Stacy Folake Agboola dated 15 February 2013.

•Statutory Declaration issued by Ms Aitken-Andrews regarding being the only living mother of the visa applicants.

•Mabecon Private School registration form dated 15 September 2014.

•Mabecon Nursery and Primary School – school records 2015 and 2016.

•Salary advice for Mr Agboola.

•Form 80.

•Birth certificate listing parents as review applicant and Stacey Folake Agboola.

Dependent child

18.At the time of application, each visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen.[24] ‘Dependent child’ is defined in reg 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. For there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person.[25]

[24] cl 101.211(1)(a) Migration Regulations 1994 (Cth)

[25] Huynh v MIMA [2006] FCAFC 122 at [39], [44]

19.The review applicant was granted a partner visa on 19 September 2016 and acquired Australian citizenship on 17 September 2019. The visa applicants are under 18 years of age and are not partnered or engaged. Accordingly, cl 101.211(1)(a) and cl 101.211(1)(b) continue to be met at the time of application, and at the time of decision.

Public interest criteria (cl 4017 and 4018)

20.Clause 101.326 of the Regulations provides that if the visa applicant has not turned 18, public interest criteria 4017 and 4018 are required to be satisfied in relation to the visa applicant. The public interest criteria requires that the Minister must be satisfied that:

•the law of the applicant's home country permits the removal of the applicant.

•each person who can lawfully determine where the applicant is to live consents to the grant of the visa.

•the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

21.In this case, based on the documentary evidence provided to the department, the Tribunal has accepted that the death certificate issued on 15 February 2013 and the NPC death certificate issued on 10 September 2019 are not genuine. In addition, based on the documentation provided by the Lagos State Judiciary, the Tribunal has accepted and found that the custody order issued by the Lagos State Judiciary listing the review applicant’s sister to assume sole custody of the visa applicants is a bogus document.

22.Therefore, in circumstances where the custody order is a bogus document, the Tribunal is not satisfied that the law of the review applicant’s home country permits the removal of the visa applicants. In addition, given that the Tribunal has found that the death certificate issued on 15 February 2013 and the NPC death certificate issued on 10 September 2019are not genuine the Tribunal is not satisfied that each person who can lawfully determine where the visa applicants are able to live consent to the granting of the visa.  

23.As such the Tribunal is not satisfied that cl 101.326 in Schedule 2 to the Regulations has been met.

24.The review applicant has not made any claim against any of the other subclasses within the Child visa class, being Subclass 117 Orphan Relative and Subclass 102 Adoption. Accordingly, the Tribunal finds that the criteria of both subclasses are not met.  

DECISION

25.The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Jason Pennell

Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

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.

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.

…