Eworho (Migration)

[2018] AATA 4498

Eworho (Migration) [2018] AATA 4498 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Matilda Eworho

VISA APPLICANT:  Miss Salamatu Lisa Adeti

CASE NUMBER:  1801377

HOME AFFAIRS REFERENCE(S):           2017022658 OSF2017022658

MEMBER:Meena Sripathy

DATE:17 September 2018

PLACE OF DECISION:  Sydney

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 101 (Child) visa:

·cl.101.211 of Schedule 2 to the Regulations; and

·cl.10.221 of Schedule 2 to the Regulations; and

·cl.101.226 of Schedule 2 to the Regulations.

Statement made on 18 September 2018 at 1:21pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) visa – daughter of the sponsor – willingness to undergo DNA testing – sponsor’s family in Australia – plausible explanation provided – sponsor financially supports daughter – documentary evidence missing – no request for applicant’s birth certificate by Department – applicant’s father consents to visa application – honest and credible witnesses – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 101.211, 101.221, 101.226 Schedule 4 PIC 4017, 4018

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 and Border Protection on 4 December 2017 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 12 June 2017. 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 which requires the applicant to be a dependent child of an Australian citizen or holder of a permanent visa.

4. The delegate refused to grant the visa on the basis that cl.101.211(1)(a)  was not met because the delegate was not satisfied, in the absence of documents to support the birth of the applicant, that she is the child of the sponsor. The delegate was also not satisfied, in the absence of documents, of the age of the visa applicant and whether she had not turned 25 at time of application.

5. The review applicant appeared before the Tribunal on 29 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Christopher George Eworho, father of the review applicant.

6. The issue in this case is whether the visa applicant is the dependent child of the review applicant. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The visa applicant claims to be a 13 year old child born, and residing, in Ghana.  Little other information is completed on the application form, including no information about her father or other relatives.  She is sponsored by the review applicant who arrived in Australia on 27 July 2009.  She indicates the visa applicant is her natural child. The sponsor indicates her relationship status as ‘never married or in a de facto relationship’.  She states she is in paid employment and resides with two others in an owner occupied dwelling.

9. With the review application, a Certified Copy of Entry in Register of Births is submitted relating to the visa applicant.  This document indicates the name of the father (Kwaku Adeti) and mother (the review applicant).  It indicates the father as informant and the date of registration as 20 October 2014.  The document indicates it was provided on 19 December 2017.  Also submitted is a statement from Grace Eworho, who states her address and that she is the paternal aunt of the visa applicant, who has been under her care since 2009 and that she has no objection to the visa applicant travelling to Australia.  The statement is typed, and unsigned.

10. On 22 August 2018, in responding to the invitation to hearing, the review applicant provided evidence of several financial transfers made to Ms Grace Eworho  - one is indicated to be in January 2018, and the remainder (screen shots of mobile money transfers) are undated.

11. The Tribunal took oral evidence from the review applicant and her father, Christopher George Eworho at the hearing.  They gave their evidence in a forthright manner and answered the Tribunal’s questions fully and frankly and without hesitation.  Their evidence, given separately, was consistent with each other and with documentation on Departmental files. On this basis, the Tribunal accepts the review applicant and her father as honest and credible witnesses and accepts their oral evidence.  Details of relevant evidence given at the hearing is included below.

12. The review applicant lives with her father, and until recently her sister.  Her sister moved out to live closer to her work.  They have another brother who lives separately with his wife and two children. The review applicant works as a food server in a nursing home.  

13. The review applicant told the Tribunal she has other relatives in Australia, including 4 of her father’s siblings and their families.  He has other siblings in Ghana also. She confirmed that she came to Australia in 2009 on a child visa, along with her two siblings.  She is the youngest of the three.  Their mother deceased when she was quite young and she lived with her grandmother and father’s sisters in Ghana, after her father left for Australia.  In his oral evidence, her father confirmed the family composition.  He stated his father has lived in Australia for over 35 years, and recently returned to Ghana.  The review applicant’s father came here in 1990. He has 3 other (half) siblings here also. Two of them came with their mother, sponsored by his father and the fourth sibling came around the late 1990’s. 

14. The review applicant told the Tribunal she had her daughter, the visa applicant, in 2004, when she was about 15 years old.  She stopped studying because she became pregnant.  She did not return to study after that. The father of the visa applicant was a few years older. He lived in Accra, and did casual work.  They never lived together at any time.  She continued to see him from time to time during the pregnancy and afterwards but they had a misunderstanding after the birth of the child because he was unable to look after her and their child.  She told the Tribunal from the time of her birth, the visa applicant lived with her and her grandmother and aunties.  They never lived with the father of the visa applicant.

15. The Tribunal asked the review applicant if she recalls mentioning the visa applicant in her own Child visa application. She said she believes she was not mentioned.  She asked the Tribunal to discuss this with her father as he arranged that application. 

16. Since she came to Australia in 2009, the review applicant said she is in regular contact with the visa applicant and sends money for her care.  She referred to the evidence of financial transfers provided.  The visa applicant lives with the review applicant’s relatives, including her aunty Grace.  There are other relatives also living there, including two other cousins and Grace’s son and her grandfather also comes and goes.  The Tribunal asked the review applicant about the visa applicant’s contact with her father. She said she does not know if he has regular contact with the visa applicant. The review applicant herself was in touch with him since coming to Australia but can’t recall the last contact she had.  She said she lost his phone number when she lost her phone.  She can however find out from her aunty how to contact him if required. 

17. The Tribunal discussed with the review applicant the issue of his consent to the visa applicant migrating to Australia and explained that a public interest criterion (4017) requires this.  She said she does not believe he would have any objection and can obtain his consent if required.

18. The Tribunal asked the review applicant about the Birth Certificate for the visa applicant given to the Tribunal after the delegate’s refusal decision.  The Tribunal explained to the review applicant its concern about the reliability of this document given the issues that arose in her own application for a Child visa where the birth certificates provided were acknowledged to be inaccurate.  It explained its concern also arises due to the late submission of this document and the dates indicated on it.

19. It asked why a birth certificate was not provided with the application. She said the Department never requested it and so they did not realise it was necessary. After the refusal they realised this was the issue and her father asked his sister to obtain a copy of the certificate.  The review applicant explained that the original birth certificate they had was misplaced and this is why the copy had to be obtained recently.  She invited the Tribunal to discuss the matter more with her father.

20. The Tribunal asked the review applicant if she is prepared to have a DNA test to establish her relationship with the visa applicant. She responded immediately that she is very happy to do so because the visa applicant is definitely her child and if this is necessary to prove it she can do so.

21. In his evidence the review applicant’s father explained that he arranged for the lodgement of this application and when he did so he did it the same way he lodged his own children’s applications. He thought the visa applicant’s passport was enough and did not realise the birth certificate was necessary. He stated, consistently with the review applicant, they never received any request from the Department for the birth certificate.  This was despite the fact that the review applicant travelled to Ghana after the lodgement of the application and made enquiries about the application and requested her daughter’s passport be sent to her to arrange medicals.  At no stage was any further documentation requested.  It was only after they got the refusal they saw this was the reason.  He stated that they had a birth certificate because this document was necessary to apply for the visa applicant’s passport.  Later this document was misplaced, and so he requested his sister to obtain another copy which is the one provided to the Tribunal. 

22. The Tribunal discussed with the review applicant’s father his own children’s applications.  It asked him if he declared the visa applicant or his other daughter’s son in their child visa applications, noting that the form requests this information.  Mr Eworho explained that he did not initially know either of his daughters had children.  He wanted them to study and was not happy when he learned that they had become pregnant and had children.  Initially he was very angry about it and that is why he did not include them (his daughters’ children)  in their applications.  Later his own father (here in Australia) and mother who was looking after his children, convinced him to relent and help them to come here and that is why he assisted his daughter with this application.  After his mother passed away in 2008, Mr Eworho returned to Ghana and took his daughter (the review applicant) and her child to stay with his sister in Tema. 

23. The Tribunal asked the witness what he knew of the visa applicant’s father. He said he does not know much about him because he was not happy about the pregnancy in the first place.  The Tribunal put to the witness, given the issues arising relating to unreliability of birth documentation in his own children’s application, it may require DNA testing to establish the relationship between the review applicant and the visa applicant. He stated that this is fine and she would be happy to do it because the child is hers.  He stated that he was prepared to do the same to establish his own relationship with his children and the results proved it.  He stated emphatically to the Tribunal that he would never support bringing the visa applicant to Australia if she was not his daughter’s own child.  He explained that he is responsible for all of the costs as the review applicant earns little and he would not waste his money on a child who belongs to someone else. 

24. The Tribunal explained to the review applicant and her father that two issues arise in this matter.  The first is whether it is satisfied that the visa applicant is the natural child of the review applicant as claimed.  It put to them that while a birth certificate has now been provided, the Tribunal must be satisfied on the basis of this document that the relationship is as claimed.  A second issue arising on the material in this case is whether the father of the visa applicant consents to her migration.  In respect of the first, it notes the review applicant’s clear indication that she is willing to do a DNA test if necessary, and will consider whether this is necessary. In relation to the second issue, the Tribunal asked the review applicant to submit a signed Form 1229 Consent form.  

    Dependent child criteria

25. The issue in the present case is whether the visa applicant is the dependent child and the natural child of the applicant.

26. The criterion in cl.101.211 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). ‘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, be under 18 or, 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.

27. In the present case the visa applicant claims to be born in December 2004 which makes her 12 years old at the time of application and 13 years old at this time. The review applicant, who claims to be her natural mother, was born in 1989.  The Tribunal accepts that, given the review applicant’s age, it is unlikely that the visa applicant can be older than 18 years at time of application (as she would have had to be born in 1999, when the review applicant was 10 years of age). 

28. On this basis it accepts the visa applicant was and is under 18 years of age and therefore a dependent child as defined.

29. Accordingly, cl.101.211(1)(a) and (b) are met at the time of application, and continue to be met at the time of decision.

30. The remaining issue in relation to this criteria is whether the visa applicant is the natural child of the review applicant: cl.101.211(1)(c).

31. In support of this claim the review applicant has now provided the Tribunal a certified copy of entry in register of births, which indicates the review applicant as mother and names the father of the visa applicant.  The document indicates the birth was registered by the father on 20 October 2014, and this certified copy of the document was obtained in December 2017. The review applicant and her father gave oral evidence  to the Tribunal in support of the claim that the review applicant is the visa applicant’s natural mother.  They acknowledged that the visa applicant was not referred to in the review applicant’s own Child visa application made in 2007, and provided an explanation.  During the hearing the Tribunal also discussed with the review applicant and her father its concerns about accepting the birth certificate document given the acknowledged unreliability of such documentation in Ghana, demonstrated by her own application, and the late submission.  It has considered and accepts the explanation they each gave for not providing this document earlier.  File records in the Department file supports their oral evidence that this information was never requested from them.  It is unfortunate and somewhat unusual  that the request was not made prior to refusal of the application, especially given that the sponsor had travelled to Ghana during this time and was in communication with them about the application.  The Tribunal has also taken into consideration that the review applicant and her father were immediately ready and prepared to undertake DNA testing to establish the relationship if this is required. 

32. The Tribunal has carefully considered the evidence before it and whether it requires DNA testing to be satisfied of the fact of the review applicant and visa applicant’s relationship.  The Tribunal is mindful that applicants are not obliged to undertake DNA testing and that it is only a useful tool to verify a claimed biological relationship in circumstances where may not be other satisfactory evidence such as a reliable birth certificate.  Departmental policy (not specifically binding on the Tribunal, but useful to consider) clearly states that DNA testing should be used as a last resort strategy where claims are doubtful or if credible documentation cannot be provided to substantiate claimed familial relationships and should not be used in cases where a case can be approved on the available documentation by giving the benefit of the doubt.[1]

    [1] Departmental Policy [Div 1.2/r.1.12]- Interpretation Interpretation : 5. When is testing appropriate

33. In the present case, given the Tribunal’s favourable credibility assessment of the review applicant and her father, their spontaneous and credible responses to the Tribunal’s questions relating to the circumstances around the visa applicant’s birth and care arrangements, and indication of preparedness without hesitation to undertake DNA testing, it is prepared to give the review applicant the benefit of any doubt on this issue and does not consider DNA testing necessary in this case. 

34. On the basis of the evidence of registration of birth, naming the review applicant as her mother, and oral evidence of the review applicant and her father at the hearing, the Tribunal accepts the visa applicant is the natural child of the review applicant.  Accordingly, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

35. For the reasons above, the criteria in cl.101.211 and cl.101.221(1) are met.

    Consent of the visa applicant’s father

36. Although the delegate did not specifically address this criteria, the Tribunal considers the issue of the consent of the visa applicant’s father also arises on the material before it. The birth certificate provided indicates the name of the visa applicant’s father and the review applicant gave oral evidence regarding this person and his relationship with the visa applicant during the hearing.  The Tribunal discussed the issue of the requirement for his consent with the review applicant during the hearing and she indicated that she could obtain this. 

37. Following the hearing the Tribunal invited the review applicant to provide evidence that the visa applicant’s father consents to the grant of the visa.  On 12 September 2018 the review applicant provided the Tribunal a Form 1229 signed by the VA’s father and herself.  The Tribunal subsequently requested the review applicant provide a copy of the email sent by the visa applicant’s father attaching the signed and scanned form, which she did. 

38. On the basis of this evidence the Tribunal is satisfied that public interest criterion 4017 is met.  The Tribunal is also 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 and therefore public interest criteria 4018 is met.  Accordingly the applicant meets cl.101.226.

1. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

2. 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 101 (Child) visa:

   ·cl.101.211 of Schedule 2 to the Regulations;

   ·cl.101.221 of Schedule 2 to the Regulations; and

   ·cl.101.226 of Schedule 2 to the Regulations.

   Meena Sripathy
   Member

   
   

   ATTACHMENT – RELEVANT LAW

   Migration Regulations 1994

   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; and

   (b)  subject to subclause (2), has not turned 25; and

   (c)  either:

   (i)  is:

   (A)  the child(other than an adopted child); or

   (B)  the step-child within the meaning of paragraph (b) of the definition of step-child;

   of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen  mentioned in paragraph (a); or

   (ii)  was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.

   (2)  Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

   101.226

   If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

   1.03     Definitions

   …

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

   …