Okpiaifo (Migration)

[2020] AATA 2338

Okpiaifo (Migration) [2020] AATA 2338 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Regina Ebere Okpiaifo

VISA APPLICANT:  Mr Kayode Osamudiame Okpiaifo

CASE NUMBER:  1724528

HOME AFFAIRS REFERENCE(S):          F2016/075733 OSF2016/075733

MEMBER:Andrew George

DATE:15 April 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 15 April 2020 at 12:44pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant’s identity – discrepancies with regard to visa applicant’s name – DNA evidence – biological relationship established – criteria for applicants over 18 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

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 16 August 2017 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 Mr Kayode Osamudiame Okpiaifo. The visa applicant applied for the visa on 4 May 2016. 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).

3. 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.101.213.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because “… discrepancies with regard to the [visa] applicant’s name raise serious concerns about the applicant’s credibility including his identity.”

5. The review applicant is Ms Regina Ebere Okpiaifo. On 27 May 2019 the Tribunal offered the review applicant the opportunity to provide DNA evidence of the claimed biological relationship between her and the visa applicant. A subsequent Maternity Test Report dated 17 July 2019 gave a Probability of Maternity as 99.9999970%.

6. The review applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sons, Mr Samuel Okpiaifo and Mr Osajie Okpiaifo.

7. The review applicant was represented in relation to the review by her registered migration agent, Playfair Visa and Migration Services. The agent did not appear at the hearing. At the close of the hearing the review applicant was allowed until 10 January 2020 for her agent to source the audio recording and supply written submissions. No post-hearing submissions were forthcoming.

8. Note is made that a great amount of documentary material has been placed before the Tribunal, in addition to brief written submissions dated 22 November 2019. Numerous certificates and invoices, and certified and uncertified copies of official documents, have been submitted to the Tribunal in separate emails. This material is not indexed or paginated. This approach has not assisted the Tribunal.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal accepts the Maternity Test Report of 17 July 2019 that the visa applicant is the biological son of the review applicant. It is material that this evidence was not before the delegate and it substantially establishes the identity of the visa applicant.

11. The Tribunal broadly accepts the written statements of the review applicant dated 6 May 2019, and the visa applicant dated 12 October 2017, to the extent that they explain the various name and signature changes of the visa applicant. Material aspects of this evidence were corroborated by Mr Samuel Okpiaifo and Mr Osajie Okpiaifo in their oral evidence. Taking this evidence as a whole, the Tribunal is satisfied that the visa applicant is known through variations of the following names: Kayode Osamudiame Okpiaifo, Adogun Robert Osamudiame, and Adogun Robert K.O. The Tribunal is therefore satisfied as to the identity of the visa applicant, being the biological son of the review applicant.

    Criteria for applicants over 18

12. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Relationship status and history

13. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

14. There is no evidence before the Tribunal to suggest that the visa applicant is engaged to be married, or has or has ever had a spouse or de facto partner, at time of application or decision Accordingly, cl.101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

15. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b). There is no evidence before the Tribunal that the applicant was engaged in full-time work at the time of application, or is so now. Accordingly, cl.101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

16. At the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c).

17. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl.101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2).

18. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

19. There is no evidence before the Tribunal that the applicant was incapacitated because of loss of bodily or mental functions. The question then for the Tribunal is whether at the time of application, the applicant had been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12.

20. The visa applicant was born on 25 September 1996 and so turned 18 years on 25 September 2014. The exact date that the visa applicant finished secondary school is unclear to the Tribunal. The School Leaving Testimonial from Marist Comprehensive Academy was signed on 2 December 2014. As such, the Tribunal adopts that date as the visa applicant’s completion date of year 12.

21. The submissions dated 22 November 2019 are that the visa applicant entered full-time study in a Bachelor of Applied Biology and Biotechnology at Enugu State University of Science and Technology in September 2017. This 10 months, rather than 6 months, after completing year 12. Nevertheless, and despite a lack of submission on this point, the Tribunal regards this difference as reasonable given the oral evidence of Mr Osajie Okpiaifo that visa applicant had to relocate and move onto campus for university.

22. From the oral evidence before it, as corroborated by the documentary evidence, the Tribunal accepts that the visa applicant is presently studying a Bachelor of Computer Science at Enugu State University of Science and Technology. The Tribunal accepts the review applicant’s oral evidence that the visa applicant is due to finish this degree in 2021 and that she is financing the visa applicant. The Tribunal also accepts that, after withdrawing from the Bachelor of Applied Biology and Biotechnology in 2017, the visa applicant enrolled in a Diploma of Computer Science and completed it in 2018. The Tribunal is satisfied that the visa applicant has been studying full-time consistently at Enugu State University of Science and Technology since September 2015. Accordingly, cl.101.213(1)(c) is met and it continues to be met at the time of decision.

23. For the reasons above, cl.101.213 is met at the time of application. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

24. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

25. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221(2)(b) of Schedule 2 to the Regulations.

    Andrew George
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …