Olowosegun (Migration)

[2024] AATA 3088

Olowosegun (Migration) [2024] AATA 3088 (17 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Olufunke Olufunmilayo Olowosegun

VISA APPLICANTS:  Mrs Omolara Aduragbemi Daramola
Master Oluwakayode Solomon Daramola

CASE NUMBER:  2307746

HOME AFFAIRS REFERENCE(S):          BCC2023/2162995

MEMBER:Paul Windsor

DATE:17 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the directions that: the first named applicant meets the following criteria for a Subclass 600 visa:

·cl 600.232 of Schedule 2 to the Regulations

the second named applicant meets the following criteria for a Subclass 600 visa:

·cl 600.213(2) of Schedule 2 to the Regulations

Statement made on 17 July 2024 at 3:36 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – a settled Australian citizen – evidence provided – satisfied that the review applicant (the sponsor) is the visa applicant’s sister – no compelling reason to believe that the grant of the visa would not be in second named applicant’s best interests – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 1.03, PIC 4018, Schedule 2, cls 600.232, 600.213

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 6 and 8 April 2023. The delegate refused to grant the visas on 17 May 2023.

2. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.232, which requires the visa applicant to satisfy the Minister as to the relationship between the visa applicant and the sponsor; and cl 600.213 which requires the visa applicant to satisfy the Minister that they satisfy certain public interest criteria.

4. The delegate refused Mrs Daramola’s application on the basis that the sponsor had failed to provide official documentary evidence to establish her relationship with the visa applicant. Consequently, the sponsorship was not approved and the visa application was refused. The application for Master Daramola, who is the son of Mrs Daramola, was refused as a consequence of the refusal of his mother’s application. The delegate found he did not meet public interest criterion (PIC) 4018 (and therefore did not meet cl 600.213(2)).  PIC 4018 requires that the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the child. The delegate considered that this requirement was not satisfied because he was to travel with his mother, whose visa applicant had been refused. The delegate considered that it would not be in the applicant’s best interests to travel to Australia without the adult relative who it was intended would accompany him.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The key issue in this case is whether Mrs Daramola satisfies the requirements of cl 600.232.

6. Clause 600.232(2) requires that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 years old and a relative of the visa applicant. The review applicant is seeking to sponsor Mrs Daramola and Mrs Daramola’s son.

7. The Department’s records indicate the sponsor is an Australian citizen. In assessing whether she is a ‘settled’ Australian citizen, the Tribunal has had regard to regulation 1.03 which defines ‘settled’ as follows: Settled, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period.

8. ‘Lawfully resident’ and ‘a reasonable period’ are not defined in regulation 1.03. The Department’s policy guidelines state that if the sponsor has been lawfully resident in Australia for two years, discounting short trips outside of Australia for up to four months, the assessment of ‘settled’ will be considered met. However if the sponsor has been outside of Australia for more than four months in the two year period immediately preceding the date the visa application was made, they must provide evidence that they are currently settled in Australia.

9. In this case the sponsor’s movement records indicate that she was born on 2 February 1972 in Nigeria. She first entered Australia in March 2007 and became an Australian citizen on 13 July 2015. She has not been outside of Australia for more than four months in the two year period immediately preceding the date the visa applications were made. Accordingly, the Tribunal is satisfied that she is at least 18 years of age and is a settled Australian citizen.

10. In assessing whether the review applicant is a relative of Mrs Daramola, the Tribunal notes that ‘relative’ is defined in regulation 1.03 as follows: Relative, in relation to a person, means:

    (a) in the case of an applicant for a Subclass 200 (Refugee) visa or a protection visa:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew; or

    (iii) a first or second cousin; or

    (b) in any other case:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew.

11. ‘Close relative’ is defined in regulation 1.03 as follows: Close relative, in relation to a person, means:

    (a)  the spouse or de facto partner of the person; or

    (b)  a child, parent, brother or sister of the person; or

    (c)   a step-child, step-brother or step-sister of the person.

12. In this case, the sponsor claims Mrs Daramola is her sister. If that is the case the sponsor will be a close relative (sister) of Mrs Daramola for the purposes of regulation 1.03; and will be a relative of Master Daramola (his aunt).

13. In the decision record, the delegate expressed concern that the sponsor had submitted her marriage certificate as documentary evidence of her relationship with Ms Daramola. He noted she had also provided a ‘Declaration of Age’ document from their father but commented that ‘statutory or other declarations are not acceptable as evidence of relationship’. He found the documents provided are insufficient to establish that the applicant is the sponsor’s sibling.

14. With the review application, the sponsor included a copy of Ms Daramola’s marriage certificate. This indicates that, at the time of her marriage on 5 July 2012, her name was Omolara Aduragbemi Rowland, and her father was Solomon Adeyinka Rowland. A document has also been submitted indicating that she changed her surname from Rowland to Daramola (her husband’s surname) after her marriage.

15. The sponsor also included a further copy of her marriage certificate. This indicates that, at the time of her marriage on 9 December 2008, her name was Olufunke Olufunmilayo Rowland, and her father was Adeyinka Rowland.

16. The ‘Declaration of Age’ document from their father submitted to the Department is a photograph of a (very aged) Affidavit, sworn by Mr Solomon Adeyinka Rowland on 7 April 1995.  It states that Miss Omolara Aduragbemi is his daughter and that she was born on 25 October 1977 in Mushin Local Government Area of Lagos State. It further states that at the time of her birth, ‘her birth was duly registered at the above mentioned local government, birth certificate obtained but later got lost on transit and all effort made to recover or trace it proved abortive’. He states that ‘this affidavit is now required for official record purposes’.

17. The Tribunal accepts that the affidavit is a genuine document, dating from April 1995, and that the sponsor is unable to produce a birth certificate for her sister. The Tribunal notes that the photograph of the biodata page of Mrs Daramola’s Nigerian passport submitted to the Department records her date of birth as 25 October 1977 and place of birth as ‘Lagos’, consistent with the above.

18. The Tribunal also notes that Mrs Daramola and her son were granted Visitor visas in the Sponsored Family stream on 21 October 2015, sponsored by the review applicant, and no concerns were raised by the Department in relation to that sponsorship.

19. Considering the available evidence, the Tribunal is satisfied that the review applicant (the sponsor) is the visa applicant’s sister. The Tribunal is also satisfied that the sponsor is a settled Australian citizen. Accordingly, the Tribunal is satisfied that the relevant criterion is met and has concluded that the matter in relation to Ms Daramola should be remitted for reconsideration.

20. A birth certificate was submitted in relation to Master Daramola. The Tribunal is satisfied he is Ms Daramola’s son. Accordingly, the Tribunal is satisfied that he satisfies PIC 4018, because there is no compelling reason to believe that the grant of the visa would not be in his best interests. Therefore cl 600.213(2) is met in his case and the Tribunal finds that the matter in relation to Master Daramola also should be remitted for reconsideration.

21. In reaching its decisions the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the review applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

    DECISION

22. The Tribunal remits the applications for reconsideration, with the directions that: the first named applicant meets the following criteria for a Subclass 600 visa:

    ·cl 600.232 of Schedule 2 to the Regulations.

    the second named applicant meets the following criteria for a Subclass 600 visa:

    ·cl 600.213(2) of Schedule 2 to the Regulations.

    Paul Windsor
    Member