Fofana (Migration)

[2018] AATA 394

Fofana (Migration) [2018] AATA 394 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ellen Fofana

VISA APPLICANT:  Ms Yvonne Kromah

CASE NUMBER:  1615733

DIBP REFERENCE(S):  F2015/046282 OSF2015/046282

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 11:29am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Visa applicant – Niece of review applicant’s half- sister – Visa applicant not adopted by the review applicant

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14 Schedule 2 cls 117.111, 117.211, 117.221

CASES

Nguyen v MIMA (1998) 158 ALR 639
EC v MIMIA [2004] FCA 978

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 19 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 for the visa on 29 September 2015. 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.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117. 211.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant was a relative of the review applicant within the meaning of the Migration Act. The review applicant claims the visa applicant is her niece however she had not previously declared either of the parents of the visa applicant as a sibling in any of her previous visa applications.

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.

   BACKROUND

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

9. The visa applicant is a citizen of Liberia born on 4 September 2009 (8 years old). On her birth certificate her mother is registered as Famatta Koille and Varfee Kromah.

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 delegate was provided with a copy of the visa applicant’s birth certificate which was filed and issued in June and July 2014. The visa applicant’s parents are Varfee Kromah and Kollie Famatta. However in her application form, the visa applicant claims that she is the child of Fatuh Fofana (deceased) and Rafi Kromah.

12. There is also a copy of a court decree of guardianship decreeing the review applicant guardianship over the visa applicant. It is dated 27 November 2014. It does not mention the relationship between the visa applicant and the review applicant or disclose the names of the visa applicants biological parents or note whether they are deceased or not.

13. The parties provided no additional evidence, submissions or information to support their claims prior to the Tribunal hearing.

14. 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

15. The issue in the present case is whether the visa applicant is a relative of the review applicant within the meaning of the Migration Act.

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

16. 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.

17. ‘Orphan relative’ is defined in r.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): r.1.03. In the present case, the review applicant claims to be the Aunt of the visa applicant.

18. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met, and continues not to be met at the time of decision.

    Relative – r.1.14(a)(iii)

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

20. The visa applicant claims to be the niece of the review applicant however the review applicant did not declare either of the visa applicant’s parents as siblings on her previous visa applications or sponsorships. The names of the visa applicant’s parents differ from her birth certificate and the visa application form.

21. When asked about this at the hearing the review applicant stated that it might be a typographical error. The review applicant’s explanation about these differences was not persuasive and after an extensive discussion the applicant admitted that the visa applicant was not related to her but to her sister, Aisha who arrived in Australia earlier this year. Prior to that Yvonne was looked after by Aisha.

22. Asked how the visa applicant was related to her, the visa applicant told the tribunal that Aisha Fofana is her half-sister and that Yvonne is the maternal niece of Aisha. The Tribunal put to the review applicant that the relationship between her and the visa applicant did not meet the requirements of the regulations and as such the application would be refused.

23. The review applicant has not performed or taken up any form of parenting role of the visa applicant and indeed has never even met her. She claims to have provided financial support through her step daughter (the subject of a separate application), however the tribunal was not satisfied that this level of financial support in the absence of any other support is sufficient to establish the claimed dependency.

24. The Tribunal is not satisfied that the review applicant and the visa applicant are related in any way.

25. Accordingly, r.1.14(a)(iii) was not met at the time of application and continues not to be met at the time of decision.

    No parental care – r.1.14(b)

26. 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.

27. The parties have provided no evidence about the whereabouts of the visa applicants claimed parents or death certificates showing either or both of them are deceased. The Tribunal therefore cannot be satisfied that either the parents is dead or missing or that the visa applicant is an orphan as claimed or that she is not being cared for by either or both of the parents in Nigeria.

28. Accordingly, r.1.14(b) was not met at the time of application and [continues not to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

29. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

30. There is no evidence before the Tribunal that the visa applicant was adopted by the claimed Australian relative.

31. Accordingly, cl.117.211(b) is not met, and continues not to be met at the time of decision.

32. Given the findings above, cl.117.211 is not met.

    CONCLUSION

33. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

34. 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

    1.14Orphan 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.