Koiboi (Migration)

[2018] AATA 4016

Koiboi (Migration) [2018] AATA 4016 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tarnue Koiboi

VISA APPLICANTS:  Mr Richard Koiboi
Miss Evon Koiboi

CASE NUMBER:  1612762

HOME AFFAIRS REFERENCE(S):           OSF2014/052509

MEMBER:Kira Raif

DATE:24 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 24 August 2018 at 7:53am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – children of the sponsor – DNA tests – not biological or adopted children – dependent on the sponsor – financial support and upbringing – decision under review affirmed

LEGISLATION
Family Law Act 1975 (Cth), s 60HA, 69Q
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 101.211, 101.221

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 14 July 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Libya born in 2006 and 2007 respectively. They applied for the visas on 21 November 2014. The delegate refused to grant the visas on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicants were children of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 16 August 2018 to give evidence and present arguments. 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). 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).

6. 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. 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.

7. An applicant claiming to be a dependent child of an Australian citizen, permanent visa holder or an eligible New Zealand citizen on the basis of a step-relationship must be a step-child of that person within the meaning of paragraph (b) of the definition in r.1.03, which requires that the child is the subject of a parenting order in force under the Family Law Act 1975, or guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

   Dependent child criteria

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicants claimed to be the biological children of the sponsor and provided a number of documents to confirm the relationship, including the birth certificates, photographs, statements and other evidence. The delegate requested the parties to undertake DNA testing to confirm the relationship and this was done. The primary decision record indicates that on 3 June 2016 the Department received the DNA results showing that the sponsor was not the biological father of the applicants. In his submission to the delegate the sponsor referred to a close relationship with the children but having a close emotional bond does not establish a biological relationship.

9. In his written submission to the Tribunal of 8 August 2018 the review applicant refers to the background of the application and states that he was shocked, surprised and disappointed by the DNA results as he had always accepted the children as his own. The review applicant states that the children’s mother relinquished her rights to the children and they are now living with their aunt. They have been financially and emotionally supported by the sponsor since birth.

10. The review applicant states that the children were conceived during the fighting and turmoil in Liberia and there were many cases of rape. The birth certificates were issued with the review applicant as the father and Sonnie Kollie as their mother and Ms Kollie refers in her declaration as the children’s father. The sponsor states that he has fully cared for the children for their financial and emotional needs since birth and he speaks to the children ‘almost daily’. He never doubted that the children were his own. The review applicant provided a number of documents supporting these claims, including documents that were previously submitted to the delegate. The applicant also provided to the Tribunal evidence of having provided financial support to the children. The review applicant’s representative addressed the statutory definition of the term ‘dependent child’.

11. The review applicant provided additional written evidence to the Tribunal at the commencement of the hearing, including additional evidence of financial transfers, the children’s schooling records, photographs and other materials.

12. In oral evidence the review applicant told the Tribunal that the children live with his aunt, who is becoming elderly and cannot care for them. He has been supporting the children since their birth and always considered them to be his children. Their mother lives in another country with a new family and visits them occasionally but cannot look after them. The review applicant told the Tribunal that even though the DNA test shows they are not his children, he has raised them from birth and he was shocked by the DNA results. He always treated them as his children. The review applicant said that he is the only one who has been supporting the children. The Tribunal accepts that the review applicant has been responsible for the children’s upbringing and financial support but the applicant’s subjective belief, or his ex-wife’s, does not define his relationship with the children. The Tribunal prefers to the DNA evidence, which is considers to be probative and persuasive. The Tribunal finds that the children are not the natural children of the sponsor.

13. Neither is there evidence of the children being adopted by the sponsor. Indeed, the review applicant’s claim that he always treated the children as his own suggests that there was no adoption, customary or formal, with respect to the children. There was never any intention to adopt – because the review applicant believed the children to be his own children – and there was never any action taken to adopt. The review applicant confirmed in his oral evidence to the Tribunal that the children have not been adopted. The Tribunal is not satisfied they are the adopted children of the sponsor. Any financial, emotional or other support the sponsor had provided to the children does not affect the absence of a relationship between the sponsor and the children.

14. There is no suggestion that the children were born as a result of artificial conception procedures or through a surrogacy arrangement.

15. In his submission to the Tribunal of 23 August 2018 the review applicant notes that there is no definition of a ‘child’ under the Family Law Act 1975 but states that he can be considered as a step-parent of the visa applicants within the definition of ‘step-parent’ under the Family Law Act. The Tribunal does not accept that submission.

16. The Family Law Act defines a ‘step-parent’ as a person who is not a parent of the child, and it is widely accepted that under the Family Law Act ‘parent’ means a biological or adoptive parent and does not include a person who assumes a parental role in relation to a child (see: Donnell v Dovey [2010] FamCAFC 15 at [92]).

17. Sections 60H, 60HA and 60HB of the Family Law Act provide an exhaustive definition as to who is deemed to be a parent. Relevantly, s.60HA defines a child of a de facto relationship as a biological child of both parties to the relationship, a child adopted by both parties to the relationship or by either of them with the consent of the other, or a child born as the result of an artificial conception procedure or under surrogacy arrangements. These circumstances do not apply in the present case.

18. The review applicant also refers to the presumption of paternity under s. 69Q of the Family Law Act as he has been residing with the children’s mother when the children would have been conceived. He also refers to the presumption of parentage arising from the registration of birth and from acknowledgement. In the Tribunal’s view, such presumptions no longer apply in circumstances where the DNA test has shown the review applicant not to be the biological father of the children.

19. The Tribunal is not satisfied the visa applicants are either the biological or the adopted children of the sponsor. The Tribunal is not satisfied the visa applicants are dependent children of the sponsor. While it may be that they are dependent on the sponsor, they are not children. The Tribunal finds they do not meet cl. 101.211.

20. As there is no evidence of adoption, and the review applicant concedes the children are not adopted. The Tribunal is not satisfied they meet the requirements for the Adoption visa. With respect to being orphan relatives, the review applicant told the Tribunal that the children’s mother cannot care for them because she is in a new relationship. He has not provided evidence of the mother’s financial capacity and there is no suggestion that she is otherwise incapacitated to care for the children. The review applicant’s evidence to the Tribunal is that the mother lives in a different country but visits the children from time to time. The Tribunal finds that the mother’s whereabouts are known, she is not dead and the Tribunal is not satisfied she is permanently incapacitated. The Tribunal is not satisfied the children cannot be cared for by their parents because each of them is either dead, permanently incapacitated or of unknown whereabouts.

21. Further, the Tribunal has found that the visa applicants are not children of the sponsor. There is no evidence of any relationship between them. The Tribunal is not satisfied the visa applicants are orphan relatives of the sponsor and they do not meet cl. 117.211.

22. The Tribunal discussed with the review applicant whether the application contains information that is false or misleading in a material particular, in relation to the visa applicants’ claim that there are the natural children of the sponsor, and bogus documents, being the children’s birth certificates identifying the sponsor as their father. The review applicant submits that at the time the information was provided and the birth certificates obtained, they genuinely believed that he was the biological father of the children. In his post-hearing submission, the review applicant explained why PIC 4020 should not apply to him. As the Tribunal has formed the view that the visa applicants do not meet other criteria for visa grant, the Tribunal has not considered the PIC 4020 in this decision.

    Conclusion

23. 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

24. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Kira Raif
    Senior Member