Ibizi (Migration)

[2022] AATA 278

Ibizi (Migration) [2022] AATA 278 (10 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Franck Lufalanga Ibizi

VISA APPLICANT:  Mr Ibizi Kitenge Franck

CASE NUMBER:  1933582

HOME AFFAIRS REFERENCE(S):          F2016/075895

MEMBER:Peter Vlahos

DATE:10 January 2022

PLACE OF DECISION:  Melbourne

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 101.211of Schedule 2 to the Regulations; and

·cl 101.221of Schedule 2 to the Regulations.

This  Statement was made on 10^th January 2022 at 10.30AM.

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child of an Australian citizen or permanent resident – biological child of the review applicant – birth certificate – DNA testing – money transfers – no other means of financial assistance – bona fide parent child relationship – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.221; rr 1.03, 1.05

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 1 November 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 August 2019. 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’). Relevant to this case, they include cl. 101.211 which requires the applicant to be a dependant child of an Australian citizen or permanent resident.

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 that the visa applicant is the biological child of the review applicant (and sponsor). The delegate noted the results of the paternity testing procedures which were carried out and DNA report which indicated that the review applicant (sponsor) was not identified as the biological father of the applicant.

5. The review applicant appeared before the Tribunal on 17 November 2021 to give evidence and present arguments. The hearing was conducted via a teleconference due to the persistence of protective measures having been put in place due to the persistence of the covid-19 Pandemic and the continuation of public health protection measures in place in the State of Victoria, which was held with the consent of the review applicant.  The Tribunal also received oral evidence from the review applicant’s wife, Ms Getou Bazo Bowa and from his son, Mr Dan Lufalanga Ibizi.

6. The parties were not represented at the hearing by a registered migration agent or qualified Legal Practitioner.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether visa applicant meets the dependent child criteria at the time of application.

   Dependent child criteria

9. 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

10. 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 reg 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.

11. The review applicant has provided the Tribunal with the birth certificate for the visa applicant which shows his date of birth as 20 September 2000. This means that he was 16 years-of-age at the time of application. There is no evidence that the visa applicant is engaged or partnered. The Tribunal finds that the visa applicant was under the age of 18 years at the time of application and was a child as defined in reg. 1.03(a).

12. As the applicant was under the age of 25 years at the time of application, he meets cl. 101.211(1)(b).

13. Where the applicant was under 18 years at the time of application, they are also assessed at the time of decision as if still under the age of 18 regardless of whether they have since turned 18 (cl. 101.221 (1)(b)). The visa applicant is now 21 years-of-age and the Tribunal finds that he is a dependent child at the time of this decision.

14. Accordingly, cl. 101.211(1)(a) is met at the time of application and continues to be met at the time of decision.

    Child/Parent relationship

15. At the time of application, the visa applicant must be a child (other than an adopted child) or specific kind of stepchild 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).

16. On 18 May 2017, it was submitted with the application, the certified copy of the visa applicant’s birth certificate which also recorded that he was the biological child of the sponsor, and review applicant, Mr Frack Lufalanga Ibizi.

17. On 27 July 2017, the Department requested that a DNA test be carried out in order to support the visa applicant’s claim that he was the biological child (as he claimed) of his sponsor

18. On 2 November 2017, the parties were requested by the Department to provide their comments on the DNA test which determined that the visa applicant’s sponsor, Frank Lufalanga Ibizi was not his biological father as had been claimed.

19. The Tribunal accepts that the DNA testing carried out by Genomic Diagnostics is accredited by the National Association of Testing Authorities.

20. The Tribunal noted that the sponsor provided a statutory declaration dated 28 November 2017.[1]

    [1] see, AAT File, Applicant’s statutory declaration dated 28 November 2017.

21. The sponsor declared, (at paragraph (2)) that he is the ‘biological father’ of the visa applicant. He also declares that the visa applicant’s birth was a result of a relationship he had with the applicant’s mother, Ms Andjelani Jeanne Musudi in 1997 while he was in Bunia, Congo during that country’s civil war and while he was a soldier in the Congolese armed forces. The visa applicant declares that in December 1999, the applicant’s mother (and the sponsor’s girlfriend at the time) told him of her pregnancy, which the sponsor accepted without doubt accepted that he was the applicant’s father. The sponsor declares that on 20 September 2000, the applicant was born at the Bunia General Hospital and that he witnessed the birth. The sponsor also declares that he never lived (cohabitated) with the applicant’s mother because he was at that time engaged to his current spouse who he had traditionally married in 1997.

22. The sponsor declares that his relationship with the applicant’s mother continued until she again became pregnant in 2005. On 5 December 2005, the sponsor declares that Mr Kevin Biladi Ibizi was born in Bunia General Hospital. Thereafter, the sponsor declares that he was decommissioned from the armed forces and left for [South Africa].

23. On 15 August 2013, the sponsor declares that he arrived in Australia with his family as a holder of a [specified] visa. The sponsor declares that at his immigration interview with the Department, he made it known that Ibizi Kitenge Frank was his child.

24. Since, his arrival in Australia, the sponsor declares that he has continued with his ‘parental obligations’ by ‘sending money’ to the child’s mother for ‘food, clothes, school fees and other living expenses’. He categorically declares that that ‘obligation’ continues. He also declares that the applicant is ‘part of’ ‘his family’ and that ‘all siblings consider him (the applicant) as ‘their older brother’. The sponsor declares that the non-grant of the visa to the applicant would cause a severe break in his family unit.

25. The Tribunal also noted from the evidence submitted by the (review) applicant (the sponsor), that he has been providing for the applicant all the necessities of life as one would expect from a parent who fulfilled his responsibilities towards their child: see, for example, the records of money despatched to the applicant for his needs, living and education while is living in South Africa.[2]

    [2] see, AAT File, ‘support transaction’ slips recording money sent to the visa applicant for his living expenses, food and education.

26. It was also noted by the Tribunal from the evidence of the sponsor, that this ‘assistance’ has been ongoing and has continued while he has been in Australia. More to the point, it was emphasised by the sponsor in his evidence before the Tribunal, that if the applicant did not receive this money, he would have no means to survive while being in South Africa. The applicant was wholly dependent on assistance, he received from the sponsor, who he considered as his ‘father’. Indeed, from the evidence before the Tribunal, the applicant had no other means of financial assistance – other than what was provided to him by the sponsor, the person he knew only as his father.

27. From the evidence before the Tribunal from the witnesses, in particular, the evidence by the applicant’s daughter, the visa applicant was always considered a sibling and an integral part of the sponsor’s family unit. The family continues to remain in close contact with the applicant and his absence from their lives in Australia has seriously disturbed the tranquillity of the family as whole.

28. The Tribunal was told that the applicant had received assistance and support from his birth. It is reasonable to conclude, that regardless of the DNA results provided which no doubt can not be disputed, the applicant considered his sponsor as his father and the sponsor considered him his son. This was emphasised to the Tribunal by the sponsor’s spouse, who confirmed in clear and uncontradictory evidence before the Tribunal, that her husband felt devasted when told the visa of ‘his son’ was refused by the Department. The ‘child’ the Tribunal was told knew only the sponsor as father and the sponsor’s children as his brothers and sister.

29. Indeed, speaking to the visa applicant about this situation, the Tribunal was told that he ‘just wanted to live with my father’. Though, the DNA caused him to feel ‘heartbroken’, the applicant told the Tribunal that he had known no other father except the sponsor who had been in his life since birth.

30. With regard to this evidence and the explanations provided by all parties to the Tribunal, it seems in the Tribunal’s opinion, that regardless of what the DNA test found officially, the applicant was an integral part of the sponsor’s family, considered at all times as the sponsor’s child – even by his former girlfriend, the applicant’s mother. If there was not the means available for DNA testing, what appeared as a true and correct record on the applicant’s birth on his birth certificate (as was submitted) would have ended the matter. Nevertheless, there is nothing from the evidence submitted to the Tribunal that the applicant was not considered other than a dependent child of the sponsor and that there was a real and bona fide relationship of parent and child between the two. The Tribunal cannot after considering all the evidence deliver a different opinion or come to a different conclusion with regards to the evidence as provided to the Tribunal and the explanations given.  

31. The Tribunal has found that the visa applicant meets the cumulative requirements of cl.101.211(1)(a), cl.101.211(1)(b) and cl.101.211(1)(c), and therefore he meets cl.101.211 in its entirety.

32. The Tribunal finds that the visa applicant does not continue to satisfy the requirements of cl.101.211 at the time of this decision only because he has turned 18 and therefore meets cl.101.221(1)(b). As cl.101.221(2) does not apply because the visa applicant was under the age of 18 at the time of application, he therefore satisfies the requirements of cl.101.221 in its entirety.

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

    DECISION

34. 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 101.211of Schedule 2 to the Regulations; and

    ·cl 101.221of Schedule 2 to the Regulations.

    Peter Vlahos
    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 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.

    …