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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Koroma (Migration)

Details

AGLC: Koroma (Migration) [2024] AATA 3987
Case: [2024] AATA 3987
Decision Date: 17 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal, constituted by Kira Raif, considered an appeal by a visa applicant concerning a Subclass 117 (Orphan Relative) visa. The applicant sought to establish that she was the niece of the sponsor, Ms Hannah Koroma, who is an Australian citizen. The core of the dispute revolved around whether the applicant had provided sufficient evidence to prove the familial relationship required for the visa, specifically that her deceased biological mother was the sister of the sponsor.

The Tribunal was required to determine whether the applicant met the criteria for an "orphan relative" as defined by the Migration Regulations. This involved assessing whether the applicant was an "Australian relative" of the sponsor, and if so, whether the sponsor was the applicant's aunt. Crucially, the Tribunal had to consider the evidence presented, including birth records, death certificates, and a DNA test, to establish the alleged sibling relationship between the applicant's mother and the sponsor.

The Tribunal's reasoning focused on the inconsistencies and lack of conclusive evidence regarding the familial relationship. While the applicant's birth certificate identified her mother as Fatmata Koroma, and the sponsorship form identified Ms Koroma as the applicant's aunt, there was no direct documentation confirming Fatmata Koroma was the sister of Ms Hannah Koroma. The Tribunal noted that a DNA test, intended to clarify the relationship, yielded inconclusive results. Furthermore, conflicting information emerged from previous visa applications made by another relative, Hawa Koroma, which suggested that the sponsor, Hannah Koroma, might be the niece of Fatmata Koroma, thus making the applicant and sponsor cousins, not aunt and niece. The Tribunal found the review applicant to be not a credible witness and ultimately was not satisfied that the visa applicant was the niece of the sponsor.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

‘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.

Ratio Decidendi

Legal Principle Established

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