Ampomah (Migration)

[2024] AATA 638

Ampomah (Migration) [2024] AATA 638 (1 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sandra Joan Ampomah

VISA APPLICANTS:  Miss Sarah Obeng Danso
Master Bright Tweneboah Danso

REPRESENTATIVE:  Mr Godson Nwankwo, Goz Chambers Lawyers

CASE NUMBER:  2116529

HOME AFFAIRS REFERENCE(S):          2017024427 and 2017024428

MEMBER:Michael Ison

DATE:1 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction the visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl 117.211 of Schedule 2 to the Regulations at the time of application for the visas; and

·cl 117.221 of Schedule 2 to the Regulations at the time of this decision.

Statement made on 01 March 2024 at 4:23pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an ‘Australian relative’ – evidence of relationship to the sponsor – half-sister of the visa applicants’ biological mother – DNA testing – contrary to religious belief – birth certificates – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.221

CASES
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is a combined application for review of two decisions made by a delegate of the Minister for Home Affairs on 8 September 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The visa applicants are Miss Sarah Obeng Danso and Master Bright Tweneboah Danso, who are both nationals of, and reside in, Ghana. Miss Danso is aged 21 and Master Danso 17 at the time of this decision. On 21 April 2017 both visa applicants applied for Child (Migrant) (Class AH) (Subclass 117) (Orphan Relative) visas.   The visa applicants are referred to as the first named and second named visa applicant respectively or collectively as the visa applicants or are referred to by name in these reasons for decision.

3. A delegate for the Minister refused the visa applicants’ Child visa applications in separate decisions, both dated 8 September 2021. The visa applicants are sponsored by the same review applicant, their aunt Mrs Sandra Joan Ampomah who is aged 60 at the time of this decision. Ms Ampomah, who is referred to as the sponsor in these reasons for decision, lodged a combined review application in relation to the refusal of both visa applications. 

4. The sponsor was born in Ghana and was granted Australian citizenship on 12 June 1996. The sponsor provided the page of her Australian passport containing her biometric data and a copy of her Certificate of Australian Citizenship. The Tribunal accepts this evidence and finds the sponsor is an Australian citizen.

5. According to the visa applicants’ visa applications, the visa applicants claim they are the younger siblings of Mr Bismark Obeng Danso, Mrs Vida Pokuaa is their mother and Mr Kojo Danso is their father. The visa applicants claim that their parents are both deceased.  

6. According to the statutory declaration declared by the sponsor on 24 February 2017, she has declared that the visa applicants and their older brother Mr Bismark Danso, are the children of her half-sister, Mrs Pokuaa. This means the visa applicants are the niece and nephew of the sponsor.   

7. The visa applicants provided evidence to the Department in the form of the sponsor’s birth certificate showing the name of the sponsor’s mother is Mrs Akua Adebi. 

8. In a statutory declaration declared by Mrs Adebi on 3 February 2016, Mrs Adebi declared that Mrs Pokuaa is her daughter, she is deceased, and the visa applicants and their older brother have been looked after by her since the death of their parents. Mrs Adebi further declared in that statutory declaration that because of her old age and unemployment, she has asked another of her daughters, the sponsor, to take care of her three grandchildren and to allow them to stay with the sponsor in Australia. 

9. However, no information was provided to the Department to demonstrate that the mother of the visa applicants, Mrs Pokuaa, is the daughter of Mrs Adebi, which in turn means the relationship of the sponsor to the visa applicants was also not proven.   

10. The Department invited the visa applicants to undergo deoxyribonucleic acid (DNA) testing to determine their biological relationship to the sponsor and also to confirm whether the visa applicants and Mr Bismark Danso are siblings, given they claim to share the same parents.

11. The visa applicants declined to undertake the DNA testing because they claim that such testing is contrary to their religious belief.

12. On 21 April 2017 Mr Bismark Danso also applied for a Child (Class AH) Orphan Relative (Subclass 117) visa application and was also sponsored for that application by the sponsor.  

13. Mr Bismark Danso participated in DNA testing at the Department.

14. On 22 June 2022 Mr Bismark Danso was granted a Subclass 117 Orphan Relative visa, which is valid to 22 June 2027. He first arrived in Australia on 5 February 2023 as the holder of that visa. The delegate attached great weight to Mr Bismark Danso being prepared to and actually undergoing DNA testing, even though the results of that testing were always going to be of limited evidentiary value in the circumstances of the sponsor and the applicants having only one shared relative.

15. By the time of the Tribunal hearing the representative submitted that the first named visa applicant was prepared to undergo DNA testing. The representative confirmed these instructions in writing after the Tribunal hearing and the Tribunal accepts this evidence but does not request or require the first named visa applicant to undertake DNA testing.

    The two primary decisions of the delegate of a Minister

16. The review applicant provided the Tribunal with copies of the two primary decisions.

17. The visa applicants applied for the visas on 21 April 2017. 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.

18. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include clauses 117.211 and 117.221 which provide:

    117.211 The applica​nt:

    (a)  is an orphan relative of an Australian relative of the applicant; or 

    (b)  is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).

    117.221 The applicant:

    (a)  continues to satisfy the criterion in clause 117.211; or

    (b)  does not continue to satisfy that criterion only because the applicant has turned 18. 

19. The delegate refused to grant the visas because there was insufficient evidence provided to the Department to demonstrate that the sponsor is the half-sister of Mrs Pokuaa, the biological mother of the visa applicants.

    Tribunal hearing

20. The sponsor appeared before the Tribunal on 24 January 2024 to give evidence and present arguments, in person.

21. The visa applicants were invited to participate in the hearing by telephone from Ghana and an interpreter who could interpret in the Akan (Ghana) and English languages was retained by the Tribunal to facilitate their participation.

22. On the day of the hearing the representative informed the Tribunal that the second named visa applicant had refused some months earlier to cooperate with the sponsor or the representative and would not participate in the hearing. The Tribunal telephoned the first named visa applicant several times before and during the hearing and her telephone would ring, but she did not answer it. The representative and sponsor both also tried to contact the first named visa applicant before the hearing, without success.

23. The Tribunal also received oral evidence from the sponsor’s middle aged of three daughters, Ms Bertha Afua Osei-Duro, who attended the hearing in-person to support her mother, the sponsor. The sponsor and Ms Osei-Duro both chose to give their evidence in English.

24. The sponsor and the visa applicants were represented in relation to the review by a migration lawyer, Mr Godson Nwankwo of Goz Chambers Lawyers. Mr Nwankwo is referred to in these reasons as the applicants representative or the representative. The representative attended the Tribunal hearing in person. 

    Tribunal decision

25. The Tribunal has had regard to the oral evidence of the sponsor and Ms Osei-Duro, all of the information in the oral and written submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s file and the Department’s files provided to the Tribunal. The Department’s files included copies of the visa applicants’ applications for a Child (Migrant) (Class AH) (Subclass 117) (Orphan Relative) visa, the documents provided to the Department in support of those applications and copies of communications between the Department and the applicants.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issue in the present case is whether the sponsor is a relative of the visa applicants.

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

28. 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.

29. ‘Orphan relative’ is defined in reg 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): reg 1.03.  In the present case, the sponsor is claimed as the Australian relative of the visa applicants because she claims to have a common parent, being their mother, with the mother of the visa applicants. Put another way, the sponsor claims to be the half-sister of the visa applicants mother and therefore the aunt of the visa applicants.

30. For the reasons below, the visa applicants are orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives 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.

    Age – reg 1.14(a)(i)

31. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The sponsor provided personal identification documents for the visa applicants to the Department which the Department accepted as showing that the first named visa applicant was aged 15 and the second named visa applicant was aged 10 at the time of application for the Orphan Relative visas. The Tribunal accepts this evidence. Accordingly, reg 1.14(a)(i) was met at the time of application by both visa applicants and for the second named visa applicant continues to be met at the time of decision.

32. The first named visa applicant is aged 21 at the time of this decision and so does not meet the requirement of reg 1.14(a)(i) to have not turned 18, but cl 117.211(b) provides in effect that the age criterion in cl 1.14(a)(i) does not have to be met at the time of decision.

    Spouse or de facto partner – reg 1.14(a)(ii)

33. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal that either visa applicant has or has had a spouse or de facto partner. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision by both visa applicants.

    Relative – reg 1.14(a)(iii)

34. 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

35. On 29 February 2024 the sponsor provided the Tribunal with a copy of an original birth certificate for Mrs Vida Pokuaa, the visa applicants deceased mother. That birth certificate states that Mrs Pokuaa’s parents are Mr Kofi Adu and Mrs Akua Adebi, although in the certificate Mrs Adebi’s family name is misspelled Adabi. This birth certificate is dated 2 April 1969 and is in a very different form to the birth certificate created on 4 August 1992 for the sponsor who was born on 1 November 1963. The reasons for these differences have not been explained to the Tribunal but given the time difference between the creation of the certificates the Tribunal does not attach any significance to these differences in the circumstances of this review.

36. The birth certificates for Mrs Pokuaa and the sponsor both show Mrs Akua Adebi as their mother. Mrs Adebi has provided a statutory declaration declared on 3 February 2016 in which Mrs Adebi declares she is the mother of both Mrs Pokuaa and the sponsor. The Tribunal accepts this evidence and finds that the sponsor is related to the visa applicants through her half-siblingship with the visa applicants’ mother, Mrs Pokuaa. The Tribunal has already found that the sponsor as an Australian citizen at the time of application for the visas and continues to be an Australian citizen at the time of this decision.

37. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

38. 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.

39. The Department accepted that the parents of the visa applicants are both deceased. The sponsor provided the Department with a range of official documents, including certificates of death, for both parents and the Tribunal accepts this evidence. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision by both visa applicants.

    Best interests – reg 1.14(c)

40. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. Mrs Adebi declares in her 2016 statutory declaration that due to her age and financial circumstances, including being unemployed, she cannot continue to care effectively for the visa applicants in Ghana. This evidence is supported by the evidence of the sponsor and her daughter Ms Osei-Duro who gave oral evidence of the regular financial and other support they provide to Mrs Adebi and the visa applicants. Their oral evidence was supported by evidence of receipts for regular money transfers to the first named visa applicant provided to the Tribunal after the Tribunal hearing. The Tribunal accepts this evidence.

41. This evidence is also supported by the oral and physical evidence provided to the Tribunal of the sponsor and her daughters having long standing relationships with the visa applicants including visiting them in Ghana most recently in 2017, 2019 and 2022, providing financial support directly to them and to them through the sponsor’s mother and having ongoing communications through messaging and social media. Ms Osei-Duro provided photos to the Tribunal after the Tribunal hearing showing her and the sponsor with the visa applicants and also Mrs Adebi in Ghana in 2017, 2019 and 2022. The Tribunal accepts this evidence.

42. The sponsor told the Tribunal that Mr Bismark Danso, who was granted the visa after the visa applicants’ applications were refused, came to Australia to live with the sponsor and her daughters in February 2022 but did not adjust well to life in Australia and returned to Ghana in mid-2023, much to the sponsor’s frustration given the time, effort and expense she had undertaken to obtain an Australian visa for Mr Bismark Danso. The Tribunal finds Mr Bismark Danso’s return to Ghana reflects his personal circumstances at the time and does not indicate the visa applicants being granted the visas would not be in their best interests.

43. The Tribunal finds there is no compelling reason to believe that the grant of the visas to the visa applicants would not be in their respective best interests.

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

    Conclusion on time of application criterion

45. Given the findings above, the Tribunal finds that the applicants met cl 117.211 at the time of application for the visas.

    Conclusion on time of decision criterion

46. The Tribunal finds that the first named visa applicant does not continue to satisfy the criterion in cl 117.211 as required by cl 117.221(a), but only because the first named visa applicant has turned 18 which is provided for in cl 117.221(b). It follows that the first named visa applicant meets the requirements of cl 117.211 of Schedule 2 to the Regulations.

47. The Tribunal finds that the second named visa applicant continues to satisfy the criterion in cl 117.211 as required by cl 117.221(a). It follows that the second named visa applicant meets cl 117.211.

    Conclusion

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

    DECISION

49. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl 117.211 of Schedule 2 to the Regulations at the time of application for the visas; and

    ·cl 117.221 of Schedule 2 to the Regulations at the time of this decision.

    Michael Ison
    Senior 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.