Fofana (Migration)

[2018] AATA 400

Fofana (Migration) [2018] AATA 400 (1 March 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ellen Fofana

VISA APPLICANT:  Ms Camberlin Demen

CASE NUMBER:  1615729

DIBP REFERENCE(S):  F2015/046306 OSF2015/046306

MEMBER:A B Baker

DATE:1 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 01 March 2018 at 11:18am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Child-parent relationship – limited amount of financial support intermittently over the years –No evidence of a blood or step relationship

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 1.03 Schedule 2 cls 101.211, 101.221

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 Immigration on 20 July 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 to the Department of Immigration for the visa on 30 September 2015. 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.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied that the applicant is the step-child of the sponsor.

5. The review applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English and English languages.

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

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

   BACKGROUND

8. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

9. The visa applicant is a citizen of Liberia born on 20 March 1998 (19 years old). She has three other siblings in Liberia whose whereabouts are apparently unknown. On her birth certificate her father is named as Lawrance Demen and her mother, Yvonne Woods.

10. The review applicant is a citizen of Australia by grant on 17 September 2008 born in Liberia on 23 January 1973 (44 years old). She arrived in Australia on a subclass 200 (refugee visa) in April 2006. She is a nurse and has been running a day-care centre since January 2013. She has also been receiving a parenting payment since January 2010. She has two children living with her, a daughter born in 1993 (24 years old) and a son born in 2010 (7 years old). She is not married.

11. The review applicant claims the visa applicant is the biological child of her previous husband, who is deceased, and therefore her step-child. The applicant has claimed that her late husband was killed on 10 March 1993 so the delegate did not accept that the visa applicant was the child of her ex husband.

12. The review applicant provided the delegate with a copy of a guardianship order decreeing the review applicant guardian of the visa applicant. The decree was made in October 2013. There is also a copy of the visa applicant’s birth certificate filed and issued in June and July 2014. The review applicant also provided evidence of monetary transfers to the visa applicant over a period in 2014-2015.

13. The application subject to this review was lodged on 30 September 2015.

14. The delegate refused the application for the following reasons:

    a.The review applicant did not declare the visa applicant as a step-child on her refugee application

    b.The visa applicant was not declared on her half-siblings refugee application

    c.There is no evidence of the visa applicant engaging in any ongoing studies subsequent to her completion of secondary school in 2014

15. The parties did not provide any additional evidence, submissions or documents to the Tribunal prior to the scheduled hearing.

16. Subsequent to the hearing the review applicant provided the Tribunal with further documents including the results of a DNA test, university fees payment, money transfers from the review applicant to the visa applicant and a statutory declaration. Where relevant that evidence is considered and reflected in the findings and reasons below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is whether the visa applicant is a dependent child of the visa applicant within the meaning of the Migration Act.

    Dependent child criteria

18. The criterion in cl.101.211 essentially 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

19. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(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, 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.

20. In this context, 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: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

21. The review applicant provided little evidence that she had been financially supporting the visa applicant at any time other than 2014-2015 although at the hearing she told the Tribunal that she had been sending her money since that time. Asked what support she had provided to the visa applicant in the 17 years since she last saw her in 2000 the review applicant was evasive and her evidence inconclusive. She said that she sent money to a friend who was looking after her biological daughter at the time and that this friend was also looking after the visa applicant. Prior to this the review applicant said that the visa applicant had been living with her paternal grandmother but the grandmother died at some point between 2000 and 2005 when she was living in Lebanon.

22. After the hearing the review applicant sent the Tribunal a transcript of funds sent from her to various people in Ghana, Liberia and the Sudan. Amongst these people was the visa applicant showing that the review applicant sent her various sums of money between May 2013 and December 2017. The review applicant also provided a number of receipts for the visa applicant’s school fees showing that she was studying full time at Blue Crest University College in Liberia as at October 2017.

23. The Tribunal asked the review applicant why she did not declare the visa applicant as a step-daughter on her refugee application and she said that the UN did not ask her about her non-biological children. The Tribunal put to her that the forms she completed to sponsor her biological daughter, sister and son asked about step-children yet she did not declare the visa applicant on those forms either. The visa applicant admitted that she did not.

24. The review applicant told the tribunal that she continued to support the visa applicant financially and paid her university fees and her rent. She said that she was supporting the visa applicant as well as her niece.

25. The Tribunal accepts that it is difficult to provide documentation about matters relevant to this review out of Africa and has made accommodations for that in coming to its decision.

26. There is no reliable evidence before the Tribunal that the visa applicant is dependent upon the review applicant in the way envisaged by the Migration Act, or that she is the step-daughter of the review applicant or related to her in any way. There are no adoption papers and the guardianship documents provided do not give any information about the biological parents of the review applicant or whether they are deceased or not. As such the Tribunal does not accept that the review applicant is the step-parent of the visa applicant.

27. Accordingly, cl.101.211(1)(a) is not met at the time of application, and continues not to be met at the time of decision.

    Child-parent relationship

28. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

29. As noted above, there is little reliable evidence before the Tribunal that the review applicant provided the visa applicant with any parental care and support. She appears to have provided a limited amount of financial support intermittently over the years. The review applicant told the Tribunal that the last time she saw the visa applicant was in around 2000 when she went to Lebanon to work and the visa applicant was a toddler. Between then and now the visa applicant has been raised by her paternal grandmother and the review applicant’s half-sister (who subsequently migrated to Australia at the beginning of 2017). She is currently living on her own. Under questioning it became apparent that the review applicant had little if any contact with the visa applicant during the 13 or so years prior to beginning the process of sponsoring the visa applicant in 2014. The review applicant’s explanations as to why there was no contact were unconvincing. She said that the visa applicant didn’t have a phone in Liberia and so she couldn’t contact her. She also claimed as house help in Lebanon she did not have the freedom to contact anyone at home. She said that after she came to Australia in 2006 didn’t know how to go about reuniting with her family members.

30. The Tribunal put to the review applicant that there was no reliable evidence that the visa applicant was related to her either by blood or by law of any kind. The Tribunal put to the review applicant that there was no evidence to support her claim that she provided the visa applicant with financial or any kind of parental support prior to 2013. The Tribunal put to the review applicant that there was no evidence that she was married to the visa applicant’s father or that he had subsequently died. The Tribunal put to the review applicant that the visa applicant’s father may well be alive and looking after her. The review applicant said that all this happened during a time of war and the visa applicant’s father died then. There was no way of obtaining a death certificate. The review applicant told the Tribunal that the visa applicant and her daughter had the same father and were very close to each other. She said that it was because of her own daughter that she wanted to sponsor the visa applicant. She said that she was prepared to submit her daughter and the visa applicant to DNA tests to establish that they had the same father. The Tribunal put to the review applicant that a DNA test would not establish who the father of the girls were but could at best establish a blood relationship.

31. The applicant sought additional time to provide the Tribunal with more evidence and to obtain a DNA test. The Tribunal agreed. The DNA tests were submitted to the Tribunal and show that the visa applicant and Janet Denman (the review applicant’s daughter) are 79.84 times more likely to be full siblings than half siblings. This raises more questions than it answers but in any case, these two girls DNA was not tested against the DNA of the review applicant or their alleged shared father. It is therefore not confirmation that the two girls are related to Mr Lawrance Denman or indeed, the review applicant.

32. The Tribunal is not satisfied that the visa applicant is the step-child of the visa applicant, or that they are related. There are no adoption papers and the guardianship documents provided do not give any information about the biological parents of the review applicant or whether they are deceased or not. As such the Tribunal does not accept that the review applicant is the step-parent of the visa applicant.

33. Accordingly, cl.101.211(1)(c) is not met at the time of application, and continues not to be met at the time of decision.

34. For the reasons above, the criteria in cl.101.211 and cl.101.221(1) are not met.

    CONCLUSION

35. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

36. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    A B Baker
    Senior 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.

    …