Kamara (Migration)

[2021] AATA 1166

Kamara (Migration) [2021] AATA 1166 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yusufu Kamara

VISA APPLICANT:  Mr Yusuf Kandeh Kamara

CASE NUMBER:  1819151

HOME AFFAIRS REFERENCE(S):          OSF2016075988

MEMBER:Kira Raif

DATE:16 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 16 February 2021 at 10:33am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – visa applicant is not a biological child of the review applicant – DNA result – no compassionate or compelling circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cl 101.211

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 19 June 2018 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 is a national of Sierra Leone born in September 2007. The visa applicant applied for the visa on 17 November 2016. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicant was a dependent child of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 2 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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. 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’ is defined in r.1.03 of the Regulations.

   Is the applicant a child of the sponsor?

6. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant claimed to be a biological child of the sponsor. He included with the visa application a birth certificate which identifies the sponsor as the father of the child and Isata Bah as the mother.

7. The visa applicant was invited to undertake DNA testing to confirm his relationship with the sponsor. The primary decision record indicates that the DNA testing was completed in late 2017 and the result was that the sponsor was excluded from identification as the biological father of the visa applicant, with the probability of paternity at 0%.

8. The visa applicant was invited to comment on the result of the DNA test. In response, the sponsor provided a statement in which he claims he was in love with the child’s mother and around December 2006 she informed him of the pregnancy and since they were living together, its legitimacy was never raised. It is stated that the sponsor accepted that he is the biological father of the visa applicant and had supported the child. He separated from the child’s mother in 2008. In 2014 the mother passed away and the sponsor’s family cared for the child while he provided financial assistance. The sponsor submitted that DNA testing was not normally done in Sierra Leone and they submitted medical materials when registering the child’s birth. He was surprised by the DNA test results and believes he has a biological connection to the child, and their relationship is recognised by others. The sponsor states that dependence is established as the child is reliant on him. The review applicant provided a copy of that submission to the Tribunal.

9. In oral evidence to the Tribunal the review applicant also stated that he had a relationship with the child’s mother and he has been taking care of the child from the time of his birth. The review applicant states that he believes the visa applicant to be his child and in their culture, they do not believe in DNA. The review applicant states that if the visa is refused, the visa applicant will be an orphan. The Tribunal accepts that the review applicant genuinely believed the visa applicant to be his child. The Tribunal offered the review applicant an option of another DNA testing but the review applicant chose not to proceed with it.

10. The applicant’s submission to the delegate and to the Tribunal is that despite the non-existence of the biological relationship between the applicant and the sponsor, the visa applicant’s reliance on the sponsor is sufficient to establish a dependent relationship. The review applicant presented to the Tribunal evidence of his contact with the visa applicant and evidence of financial support provided to the visa applicant. In the Tribunal’s respectful view, that misunderstands what is required by cl. 101.211. It is not sufficient to meet that  provision to establish the child’s dependence on the sponsor. It is also necessary to establish the relationship between the child and the sponsor. That is, the legislation requirement is not limited to dependence, but it refers to the visa applicant being a dependent child and it is that parent – child relationship that is at issue here.

11. The review applicant provided additional evidence Tribunal. The review applicant presented a psychological report stating he attended a number of consultations in April 2018 and had been assessed as having adjustment disorder with mixed anxiety and depressed mood and he is at risk of experiencing further mental health problems due to continued separation from his son. Despite the Tribunal’s considerable concerns about the timing of the review applicant’s visits to the psychologist and the reliability of the self-reporting tools, the Tribunal is prepared to accept the professional opinion concerning the sponsor’s health. However, it does not in any way assist the Tribunal in determining whether the visa applicant is a child of the sponsor, as required by the legislation. In particular, the Tribunal notes that  there is no provision to grant the visa on compassionate or humanitarian grounds. Similarly, the review applicant claims in his submission to the delegate and the Tribunal that if the visa is not granted, he would be deprived of his family and his relationship with the child would be severed and any forced separation would cause irreparable hardship to both. The review applicant refers to strong ties he has with the child and Australia’s obligations under ICCPR and CROC. The Tribunal does not consider such submissions helpful as there is no possibility of visa grant on humanitarian grounds and no provision to waive the statutory criteria.

12. The review applicant also provided to the Tribunal a number of photographs, school and other receipts, evidence of money transfers and evidence of communication. The Tribunal accepts that the review applicant communicates with the visa applicant and supports him financially. However, the key issue before the Tribunal is the applicant’s relationship with the sponsor and not dependence. The Tribunal has not considered the visa applicant’s dependence on the sponsor.

13. In his submission to the Tribunal of 15 February 2021 the review applicant claims that there is no legal requirement that the visa applicant is the biological child and that the visa may be granted to a dependent child whether or not the visa applicant is a biological child. The Tribunal accepts that the visa is not limited to biological children but there must still be a parent – child relationship between the visa applicant and the sponsor and the Tribunal must be satisfied that the visa applicant is a child of the sponsor. As noted above, the visa applicant’s dependence on the sponsor is a separate requirement and does not override the requirement that the visa applicant must be a child of the sponsor.

14. Having regard to the results of the DNA test, to which the primary decision record refers, the Tribunal finds that the visa applicant is not a biological child of the review applicant. There is no evidence of the visa applicant being adopted by the sponsor, either formally or customarily and the Tribunal is mindful that if the sponsor genuinely believed the child to be his biological child, there would be no reason to undergo any adoption process. In his submission to the Tribunal of 15 February 2021 the review applicant confirms there was no adoption. The Tribunal is not satisfied the visa applicant was adopted by the sponsor and that he is an adopted child of the sponsor. There is no suggestion that the visa applicant was born through any artificial reproduction arrangement. On the evidence before it, the Tribunal is not satisfied the visa applicant is the child of the sponsor. In reaching this conclusion, the Tribunal accepts that the sponsor may have genuinely believed the visa applicant to be his biological child until the DNA test results proved otherwise and that the sponsor provided financial and other support to the child. That is not sufficient, however, to establish a parent – child relationship between the visa applicant and the sponsor. The Tribunal is not satisfied such a relationship exists. The Tribunal is not satisfied the visa applicant is a child of the sponsor (whether or not he is dependent on the sponsor).

15. The representative submits that the review applicant was in a relationship with the child’s mother and upon the passing of the mother, there is a relationship between the visa applicant and the sponsor. The Tribunal does not accept that a parent – child relationship can be established by interactions between the applicant and the child. Further, to the extent that the applicant refers to the presumption of paternity because of his relationship with the child’s mother at the time of conception, the Tribunal considers that such presumption had been rebutted through the DNA testing.

16. The Tribunal is not satisfied the visa applicant is the child of the sponsor. He does not meet cl. 101.211.

17. As noted above, there is no evidence of the visa applicant being adopted by the sponsor and the Tribunal is not satisfied the visa applicant meets the requirements for the grant of an Adoption visa. The applicant requested the Tribunal to consider the applicant against the Orphan Relative provision, stating that he can be considered as a step-father, given his past relationship with the child’s mother. The Tribunal does not accept that to be the case. Firstly, the applicant’s evidence is that his relationship with the child’s mother has ended many years ago. Secondly, the Tribunal is of the view that  the sponsor cannot be considered as a step-child in circumstances where he is not in a relationship with the child’s mother. As the Tribunal is not satisfied the visa applicant is a child of the sponsor, the Tribunal is not satisfied he is a relative and cannot meet the requirements for the Orphan Relative visa.

18. The representative submits that there are compassionate or compelling circumstances in this case and the best interests of an Australian citizen sponsor. However, there are no provisions to grant the visa on that basis.

    Conclusion

19. 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

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

    Kira Raif
    Senior Member