Koroma (Migration) - [2024] AATA 3987

Koroma (Migration) [2024] AATA 3987 (17 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Hannah Koroma
VISA APPLICANT:  Miss Alimatu Bangura
CASE NUMBER:  2420264
HOME AFFAIRS REFERENCE(S):          BCC2022/4338871
MEMBER:Kira Raif
DATE:17 September 2024
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 17 September 2024 at 12:53pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – maternal aunt of the applicants – applicant did not provide documents to evidence that her biological mother is the sister of the sponsor – review applicant is not a credible witness – DNA test – relationship cannot be established – not satisfied the visa applicant is the niece of the sponsor – decision under review affimed

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

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 2024 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a national of Sierra Leone, born in December 2008. She applied for the visa on 13 October 2022. The delegate refused to grant the visa because the visa applicant did not meet cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was the orphan relative of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Krio language. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time the application was made, 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.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). 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.
‘Orphan relative’ is defined in reg 1.14 of the Regulations. 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): reg 1.03.
Primary decision
The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.
The visa applicant was born in December 2008 and made the application in October 2022 on the basis of being an orphan relative of the sponsor, Ms Hannah Koroma, who is identified as the visa applicant’s aunt. In support of the application the visa applicant provided a number of personal and other documents, including birth records and passport copies, a death certificate for Fatmata Koroma, school reports, financial and other documents relating to the sponsor and a DNA test result.
The visa applicant’s birth certificate identifies her mother as Fatmata Koroma and her father as Abu Bakarr Bangura. It is noted that the applicant did not provide documents to evidence that her biological mother is the sister of the sponsor. The delegate notes that on the application form the applicant stated that her mother Fatmata Koroma was deceased and that her father Abu Bakarr Bangura was residing in Sierra Leone while on the sponsorship form it was noted that Mr Bangura’s whereabouts were unknown.
The primary decision record indicates that due to the limited evidence establishing the visa applicant’s relationship with the sponsor, she was invited to undertake a DNA test. The results of the DNA test were inconclusive. The delegate noted that there was also some inconsistent information relating to the sponsor’s immigration history relevant to establishing the familial relationship. It is noted that the sponsor and another relative, Hawa Koroma had been identified as siblings of Fatmata Koroma in an application made for another visa in 2007, supporting the present claims that the visa applicant’s mother is the sister of the sponsor. However, the delegate notes that in Hawa’s subsequent application made in 2011 she declared Fatmata Koroma as her sister and Hannah Koroma as her niece and that would indicate that the sponsor Hannah Koroma is the niece of Fatmata Koroma, the mother of the visa applicant. That would indicate that the visa applicant and the sponsor are cousins rather than niece – aunt. The delegate noted that the DNA results supports the conjecture that the visa applicant and sponsor are cousins.
In response to the delegate’s letter, the visa applicant stated that she is the niece of the sponsor and that the sponsor was adopted by Hawa Koroma at the age of 4 (with no evidence provided to support that claim). It was stated that the sponsor, as a minor, could not be responsible for the information provided by Hawa Koroma in her visa applications.
Ultimately, the delegate thought it more likely that the visa applicant and the sponsor were cousins and the delegate was not satisfied they were relatives, for the purpose of r. 1.14(a).
For the purpose of r. 1.14(b), the delegate noted that no evidence was provided to support the claim that the visa applicant’s father was missing or of unknown whereabouts. The delegate was not satisfied this criterion was met.
Is the visa applicant an orphan relative of an Australian relative?
Is the visa applicant a relative of the sponsor?
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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.
The review applicant claims to be the biological aunt of the visa applicant. She provided to the Tribunal evidence relating to the adoption, which was initiated around early 2022. The review applicant told the Tribunal the adoption took place in 2023, after the application was made. The Tribunal has not considered the validity of the adoption because, even if valid, the adoption took place after the application was made. This would not assist the visa applicant in meeting the time of application criteria.
The review applicant provided to the Tribunal a declaration by Hawa Koroma, who states that she migrated to Australia in 2012 with Hannah Koroma, who is the biological aunt of Alimatu Bangara and that the late Fatima Koroma is the biological sister of Hannah Koroma. The Tribunal finds that declaration unpersuasive, as the information in the primary decision record indicates that Hawa Koroma declared the sponsor as her sibling in her 2008 visa application and as her niece in the 2011 visa application and the visa applicant claimed the sponsor was in fact the adopted child of Hawa Koroma. In oral evidence to the Tribunal the review applicant also confirmed that there is no biological relationship between her and Hawa Koroma and that she was adopted by Hawa Koroma as her mother and Hawa were friends.
The Tribunal notes that the review applicant’s relationship with Hawa Koroma has been described in three different ways. The review applicant had been variously identified as Hawa’s sister, niece or adopted child. It is unfortunate that Ms Hawa Koroma was not available to give oral evidence to the Tribunal and the review applicant explained to the Tribunal that she did not wish to give oral evidence and that she had no control over it.
The review applicant also told the Tribunal that there is no biological relationship between Hawa and Fatmata and she could not explain why Hawa declared Fatmata as her biological sister in all her visa applications. The review applicant told the Tribunal that some of the siblings declared on Hawa’s visa applications were not in fact Hawa’s siblings and had no biological relationship with Hawa. The review applicant states that they are her own siblings but not Hawa’s siblings. Again, the review applicant could not explain why these were identified as Hawa’s siblings in her visa applications.
The Tribunal accepts the claim that the sponsor – who was a minor child when Hawa Koroma made the applications – cannot be held responsible for the evidence Hawa Koroma provided in her applications. However, the issue here is not responsibility for the provision of potentially false information but the probative value of the evidence that has been provided in support of various applications and the claims that have been made in various applications, particularly when addressing the relationship between parties. The fact that false claims had been made in earlier application concerning the relationship between the review applicant and other family members (including the visa applicant’s mother) raises significant concerns about the claims made in the present application that the visa applicant is the biological niece of the sponsor.
In her written submission dated 11 September 2024 the review applicant submitted that the Tribunal should not accept Hawa Koroma as a credible witness, noting the inconsistencies in her previous applications and if Hawa Koroma’s declaration cannot be accepted as evidence of the visa applicant’s relationship with the sponsor, then the other evidence by Hawa Koroma should not be accepted or given weight. The review applicant notes that Ms Hawa Koroma’s inconsistent information was used against her as though it was factual information. The Tribunal has formed the view that Ms Hawa Koroma is not a witness of credibility, given the inconsistencies in her evidence concerning family relationships. However, rather than ignoring her evidence altogether, the Tribunal is of the view that the different description of the family composition that Ms Hawa Koroma made in her earlier applications does undermine the review applicant’s evidence about her relationship with the visa applicant. Given such discrepancies, the Tribunal has determined that it cannot unequivocally accept the evidence of the review applicant about her relationship with the visa applicant without further corroboration, such as, ideally, a DNA test or other evidence of her relationship with the visa applicant.
In oral evidence the review applicant told the Tribunal that the visa applicant is the daughter of her sister Fatmata and they share the same parents. The review applicant states that she observed her sister’s pregnancy and the birth of her niece and they are definitely related.
With respect to the visa applicant’s father, the review applicant states that her sister was raped by someone she knew and the man has disappeared. They had contacted his family and nobody knows where he is. The review applicant states that when the visa applicant was born and also when her sister died, they tried to find the father but nobody knew where he is and his family is also unaware of his whereabouts.
The Tribunal has other concerns about the credibility of the review applicant and the visa applicant.
Firstly, the Tribunal questioned the review applicant about the circumstances of Fatmata’s death. The review applicant said that her sister died of pneumonia and had a number of other illnesses (she said she could not recall for sure). The review applicant said that Fatmata she has been ill for a while before her death. When asked about the treatment Fatmata received, the review applicant said she was treated with a syrup and a drip and other medication which she could not recall. The Tribunal notes that the Medical report by Dr Samuel Tarawally which was submitted with the application refers to Fatmata having acute lymphoblastic leukemia, seizures and acute renal failure – none of which was mentioned by the review applicant when asked to describe the cause of her sister’s death. The report also refers to chemotherapy, which the review applicant has not mentioned (although she did refer to a ‘drip’).
In her submission dated 11 September 2024 the review applicant states that she gave an unsophisticated response based on her limited medical knowledge and her not knowing the cause of her siter’s death should not go against her credibility. In the Tribunal’s view, there is a difference between an unsophisticated response and limited medical knowledge and lack of knowledge and reference to a different cause of death. The Tribunal has significant concerns about the review applicant’s inability to recall the nature of her sister’s claimed illness and the cause of her death. In the Tribunal’s view, this raises some doubt about the authenticity of claims that Fatmata has passed away and concerns about the review applicant’s credibility.
Secondly, the Tribunal has serious concerns about the authenticity of a number of documents that had been presented with the application. Thus, there is ‘parental consent’ dated 22 January 2022 signed by the visa applicant’s aunt, Aminata Koroma, giving consent for the adoption of the visa applicant by the sponsor. However, it is claimed that the child’s mother died in February 2022 and there is no reason the visa applicant’s aunt would be considered as the child’s parent and capable of giving parental consent for the adoption prior to the mother’s death. The review applicant explained that her sister was very ill at the time and was in and out of hospital but even if that was the case, the illness of a parent does not change the parent – child relationship and parental responsibilities. That is, the child’s aunt would not be recognised as the child’s parent capable of giving parental consent until the death of the parent. The Tribunal is not convinced the document is a genuine one.
The review applicant also provided to the Tribunal a ‘letter of attestation’ dated 24 January 2022 which refers to the visa applicant being the biological child of Fatmata Koroma who passed away on 27 February 2022 and giving approval for fostering and subsequent adoption by the sponsor. The review applicant could not explain how the document dated 24 January 2022 could refer to Fatmata’s death on 27 February 2022, other than to state that they ‘made a mistake’. In her post-hearing submission the review applicant claims that she had tried to find out through her solicitor in Sierra Leone about the discrepancy but cannot explain it and she claims she obtained the document lawfully through the courts in Sierra Leone. Given that the document pre-dates Fatmata’s death but refers to it, the Tribunal is not convinced it is a genuine document.
The Tribunal has formed the view that the review applicant is not a credible witness. The Tribunal is not satisfied she has been truthful in her evidence concerning Fatmata’s death and the Tribunal is also concerned about the authenticity of the documentary evidence presented to the Tribunal concerning Fatmata’s death. The Tribunal has also formed the view that untruthful information had previously been provided by family members concerning the family composition and while the review applicant herself may not have been a participant in that fraud due to her young age, the willingness of family members to be untruthful when describing the family composition does raise concerns about the review applicant’s own evidence on that issue.
The review applicant refers to the results of the DNA test (a copy of which she provided to the Tribunal) but these show that the relationship between the visa applicant and the review applicant cannot be established as the results were inconclusive. The Tribunal accepts the review applicant’s evidence in her submission of 11 September 2024 that the DNA results suggest that a relationship between the visa applicant and the review applicant is 8 times more likely than if they were unrelated. However, as the DNA results letter states, that is not a sufficient degree to show a likely relationship. In the Tribunal’s view, that result does not suggest a probative basis for a positive finding that the visa applicant and the review applicant are related in the manner that they claim.
As noted above, the Tribunal does not consider the DNA test results to be useful in establishing that the visa applicant is the niece of the sponsor (as opposed to another kind of relative). It is not for the Tribunal to determine the precise nature of that relationship but for the visa applicant to satisfy the decision – maker that she meets the requirements for the grant of the visa.
Having regard to all this evidence, the Tribunal is not satisfied the visa applicant is the niece of the sponsor or that she is a relative of the sponsor. Accordingly, reg 1.14(a)(iii) was not met at the time of application and does not continue to be met at the time of decision.
Parental care
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.
The visa applicant claims the whereabouts of her father are unknown and that her mother is deceased. As noted above, the review applicant was unable to describe the cause of death or the nature of Fatmata’s illness in oral evidence. The Tribunal also noted that some of the documents that were presented with the application which refer to Fatmata’s death pre-date the claimed date of death. Having regard to these matters, the Tribunal is not satisfied the claims about Fatmata’s death are truthful and the Tribunal is not satisfied that she is, in fact, deceased.
The Tribunal is not satisfied the visa applicant could not be cared for by either parent because each of them is deceased, of unknown whereabouts or incapacitated to care for the child. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision.
The Tribunal is not satisfied the visa applicant is an orphan relative of the sponsor within the meaning of r. 1.14. She does not meet cl.117.211(a).
Has the applicant been adopted by the Australian relative?
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.
The review applicant told the Tribunal that she has adopted the visa applicant and while she initiated the process in late 2021 or early 2022 when her sister was ill, the adoption did not take place until 2023. The various documents that were submitted with the application support the claim that the adoption process commenced around early 2022 but there is no evidence that at the time the application was made, the adoption had already taken place.

As noted above, the Tribunal has not considered the validity of the adoption because the Tribunal is not satisfied the visa applicant was adopted by the sponsor at the time of the application. Accordingly, cl 117.211(b) is not met.
Given the findings above, the Tribunal is not satisfied that cl 117.211 is met.
As noted above, there is evidence of adoption of the visa applicant by the sponsor. The adoption took place in 2023, after the visa application was made. The Tribunal is not satisfied the visa applicant is a child, including the adopted child of the sponsor, and the Tribunal is not satisfied the visa applicant meets the requirements for the grant of the Child visa or the Adoption visa.
Conclusion
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
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Kira Raif
Senior Member