Nsona Elanga (Migration)

[2018] AATA 1540

Nsona Elanga (Migration) [2018] AATA 1540 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Annie Nsona Elanga

VISA APPLICANT:  Ms Gaelle Nzoalongo Manzolele

CASE NUMBER:  1610215

HOME AFFAIRS REFERENCE(S):         2015030874

MEMBER:Kira Raif

DATE:16 May 2018

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 May 2018 at 5:42pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) – Subclass 101 (Child) – Whether the applicant is a “dependent child” of the sponsor – Split dependencies – Visa applicant more dependent on other individual than review applicant – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122

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 5 May 2016 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 Congo born in September 1997. She applied for the visa on 7 August 2015. The delegate refused to grant the visa on the basis that cl.101.211 and cl. 101.1221 was not met because the delegate was not satisfied the visa applicant was a dependent child of the sponsor. The sponsor seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 8 May 2018 and 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter and her mother. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

4. At the conclusion of the hearing the review applicant’s daughter and representative stated that the review applicant misunderstood some of the questions posed to her. The Tribunal finds that claim problematic. Firstly, the review applicant (who gave evidence with the assistance of an interpreter), was expressly invited by the Tribunal at the commencement of the hearing to state if she had any difficulty understanding any questions and on the few occasions that she has done so, the questions were repeated to her. Secondly, the parties did not identify any such ‘misunderstandings’ that would in any way affect the Tribunal’s decision. The applicant’s representative refers to the review applicant not being familiar with the French academic year but it was her evidence that visa applicant had finished school in July 2015, irrespective of the academic year. The representative also notes that the review applicant has difficulty reading documents but she did submit the visa applicant’s academic papers to the Tribunal and she had the opportunity to read these with the assistance of her daughter or her representative. The representative was unable to identify any other ‘misunderstandings’. Ultimately, the Tribunal’s findings are based on the evidence concerning the family’s financial arrangements, and the visa applicant’s dependence, and not on her age or study. The Tribunal is satisfied the review applicant was given a genuine opportunity to give evidence and present arguments.  

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. 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).

7. 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).

8. 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, 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.

9. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

   Dependent child

10. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the review applicant did not mention the visa applicant in her own visa application. The delegate also notes that there were inconsistent personal details recorded on the review applicant’s UNHCR card and the visa applicant’s passport and visa application. As such, the delegate was not satisfied the visa applicant was the biological child of the sponsor.

11. The delegate acknowledged a number of financial records presented with the application showing transfers made by the review applicant but the delegate noted that the visa applicant was living with her maternal grandmother and found that she was more reliant on the grandmother than on her mother.

12. The review applicant provided to the Tribunal a written submission on 1 May 2018. The review applicant confirms her relationship with the visa applicant stating she is willing to do a DNA test. The review applicant states that her daughter was born in September 1997, which is evidenced on her vaccination card, school certificate and the social media. The review applicant describes the arrangements that were made for the visa applicant to move to France using an illegal passport, to be with her grandmother. The review applicant notes that all the official papers issued in France refer to the visa applicant being born in September 1997. The review applicant addresses in her submission the delegate’s concerns set out in the decision record and provided evidence of communication and other materials.

13. The review applicant stated in oral evidence to the Tribunal, with respect to the visa applicant’s age, that the visa applicant was born in September 1997. The Tribunal acknowledges that there are a number of documents that refer to that date of birth but the Tribunal also notes that the passport that was submitted with the application refers to the visa applicant’s date of birth as September 1994. The review applicant states that the embassy made an error and they did not pick it up until all the papers were received in Australia. The review applicant said she did not know what documents were submitted for the passport to refer to the incorrect date of birth.

14. The Tribunal finds the review applicant’s explanations unconvincing. Firstly, the Tribunal does not accept that the issuing authority would simply create a wrong date of birth without any basis for it. Secondly, the passport was issued in February 2013 while the verification was issued in October 2013. If the date of birth on the passport was incorrect, it would have been instantly apparent to the visa applicant and her grandmother. The review applicant could not explain why it took eight months for the rectification to be made.

15. The review applicant told the Tribunal the visa applicant completed secondary schooling at the age of 18 around 2015. Since then, the review applicant claims the visa applicant has not been doing anything. She has applied for jobs but has not been able to get a job. The review applicant said the school in France normally ends in July 2015 and the visa applicant should have finished school by July 2015. However, the review applicant provided to the Tribunal the School Attendance Certificate showing the visa applicant’s enrolment in September 2015 and in the 2015-2016 academic year. The review applicant said that her daughter had finished school by then and may be the certificate was issued later but there is nothing in the School Attendance Certificate that refers to the visa applicant completing school in 2015 and it is not clear why the school attendance certificate would refer to her attendance in the 2015-16 academic year if the visa applicant was no longer enrolled in the 2016 academic year, having completed school in 2015.

16. The Tribunal finds the review applicant’s evidence concerning her daughter’s date of birth unsatisfactory. The Tribunal is unconvinced by the explanation for the incorrect date of birth recorded on the passport and the review applicant’s explanations about the visa applicant’s study. Nevertheless, the Tribunal has decided to give the parties the benefit of the doubt. The Tribunal acknowledges that there are several records relating to the visa applicant’s date of birth, including UNHCR records, medical and school records and other evidence specifying the visa applicant’s date of birth. On balance, the Tribunal is prepared to accept that the visa applicant was born in 1997 and not 1994 and was under the age of 18 at the time of the application. It is therefore not necessary to consider the visa applicant’s study.

17. The Tribunal must be satisfied, for the purpose of c 101.221, that the visa applicant is a deponent child of the sponsor at the time of this decision.

18. With respect to financial dependence, the review applicant told the Tribunal that her mother has intermittent jobs and works from time to time. She could not state how much her mother earns or whether she has other income such as a pension. Following the hearing, on 16 May 2018 the review applicant provided to the Tribunal her mother’s employment and income records. At the resumed hearing on 16 May the review applicant told the Tribunal that her mother has not been working lately but then said that the mother works ‘on and off’. The Tribunal acknowledges that this is consistent with the evidence given by the review applicant’s mother.

19. The review applicant told the Tribunal that her mother lives with a partner but she did not know if he was working and what his income may be. The review applicant said that she does not contribute to the payment of rent. She subsequently told the Tribunal that she sends money generally. The review applicant said that both she and her mother buy clothing for the visa applicant and her mother pays for food although she sends her money sometimes. The applicant’s mother told the Tribunal that she has been working for several years and she works seven hours a day. It is a full-time casual job. Ms Bakwandia told the Tribunal that she earns about 1500 euros a month. Her partner also works as a delivery driver and earns about 1800 euros a month. Ms Bakwandia told the Tribunal that the review applicant sends different amounts, around AUD200 to $500 at a time. This information was discussed with the review applicant pursuant to s. 359AA of the Act and the review applicant provided her comments or response orally on 16 May 2018.

20. The evidence of the review applicant and her mother is that the visa applicant lives with her grandmother and that the grandmother has income from her and her partner’s employment. The evidence of the review applicant’s mother is that such income is considerably higher than the income from the review applicant and the review applicant’s evidence to the Tribunal is that she does not have a permanent job and is only able to send money when she works. The Tribunal acknowledges the applicant’s bank statements and evidence of transfers which she has provided to the Tribunal. The review applicant indicated that she could obtain more evidence of transfers but the Tribunal did not consider it necessary because the Tribunal accepts that the review applicant has been sending money to her mother and daughter for a number of years. The Tribunal accepts that the review applicant has provided financial support to the visa applicant. However, the parties’ evidence indicates that the visa applicant is dependent on her grandmother for shelter (the review applicant told the Tribunal she does not contribute towards the rent) and on both her mother and grandmother for food and clothing.

21. On the material before it, the Tribunal is not satisfied that the visa applicant’s reliance on her mother for basic needs of food, shelter and clothing is greater than her reliance on her grandmother or grandmother’s partner. The Tribunal is of the view that dependence requires reliance for all three elements of food, shelter and clothing and in this case, the Tribunal is not satisfied that the visa applicant’s reliance on her mother for all three elements is greater than her reliance on the grandmother.

22. The Tribunal is not satisfied that at the time of this decision, the visa applicant is a dependent child of the sponsor because the Tribunal is not satisfied the visa applicant’s reliance on her mother for financial support for her basic needs of food, shelter and clothing is greater than her reliance on any other source. The Tribunal is not satisfied the visa applicant meets cl.101.221.

23. There is no suggestion that the visa applicant is an adopted child of the sponsor and she does not meet the requirements for the grant of the Subclass 102 (Adoption) visa. She is sponsored by her mother, whose whereabouts are known and who is not incapacitated, and the visa applicant does not meet the requirements for the grant of the Subclass 117 (Orphan Relative) visa.

24. The review applicant told the Tribunal that she was separated from her daughter for many years and wants to be with all her children. The review applicant said that the separation is affecting her health. The Tribunal acknowledges that evidence but has no power to grant the visa on humanitarian grounds. Having found that the visa applicant does not meet one of the requirements for visa grant, the Tribunal must affirm the decision under review.

    Conclusion

25. 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

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

    Kira Raif
    Senior Member