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

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
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ampomah (Migration)

Details

AGLC: Ampomah (Migration) [2024] AATA 638
Case: [2024] AATA 638
Decision Date: 1 March 2024

CaseChat Overview and Summary

This matter concerned a review of two decisions made by a delegate of the Minister for Home Affairs to refuse Child (Migrant) (Class AH) visas (Subclass 117, Orphan Relative) to Miss Sarah Obeng Danso and Master Bright Tweneboah Danso. The visa applicants, nationals of Ghana, were sponsored by their aunt, Mrs Sandra Joan Ampomah, an Australian citizen. The delegate refused the applications on the basis that the relationship between the sponsor and the visa applicants had not been sufficiently proven.

The primary legal issue before the Tribunal was whether the sponsor, Mrs Ampomah, was a "relative" of the visa applicants, as required by the Migration Regulations 1994 (Cth) for the grant of an Orphan Relative visa. Specifically, the Tribunal had to determine if Mrs Ampomah, an Australian citizen, was an "Australian relative" and if the visa applicants were "orphan relatives" of hers, satisfying the criteria under clause 117.211 and regulation 1.14 of the Regulations. This involved assessing whether the sponsor was the half-sister of the visa applicants' deceased mother, thereby establishing her as the visa applicants' aunt.

The Tribunal considered the evidence presented, including statutory declarations and birth certificates. While the sponsor provided evidence of her own mother's identity and that this mother was also the mother of the visa applicants' deceased mother, there was a lack of direct evidence proving the maternal link between the sponsor and the visa applicants' mother. The Tribunal noted that the definition of "relative" includes an aunt or uncle, and an "Australian relative" is a relative who is an Australian citizen. The Tribunal found that the visa applicants met the age and spousal requirements for an orphan relative. However, the crucial element of proving the familial relationship between the sponsor and the visa applicants remained insufficiently established.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The delegate's decisions to refuse the visa applications were set aside, and the applications were to be reconsidered by the delegate, with a focus on obtaining further evidence to establish the claimed familial relationship.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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. 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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. ‘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. 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) 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. 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) 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)

Decision

Reasons for decision

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 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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. ‘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. 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) 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.