Sheriff (Migration)

Sheriff (Migration) [2023] AATA 3983 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Fata Sheriff
VISA APPLICANTS:  Mr Moses Wesseh
Ms Josephine Wesseh
Ms Helen Wesseh
REPRESENTATIVE:  Ms Krshna Inocalla Capaque
CASE NUMBER:  2101009
HOME AFFAIRS REFERENCE(S):          F2017/049810
MEMBER:Kate Millar
DATE:26 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal has no jurisdiction in relation to the first and second named applicants’ applications for Child (Migrant) (Class AH) visas.
The Tribunal remits the third named applicant’s (Helen Wesseh’s) application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that she meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations

Statement made on 26 October 2023 at 12:41pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – nephew, nieces and aunt, half-sister of mother – relationships and parents deceased or missing –mother’s death certificate verified as genuine and father taken by soldiers, whereabouts unknown and presumed dead – another claimed sibling shown to be half-niece by DNA testing and granted visa – tests for applicants inconclusive about relationship to sponsor – third applicant shown to be half-sister of other sibling – no or inconclusive evidence of first and second applicants’ relationships – genuine birth certificates contain untrue information – formal adoption not practicable and no evidence of customary adoption – jurisdiction to combine applications limited to members of family unit – no jurisdiction for first and second applicants – decision under review remitted for third applicant
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65, 338(5), 375A, 376
Migration Regulations 1994 (Cth), rr 1.03, 1.04(2), 1.12, 1.14, 4.12(4), Schedule 2, cls 117.111, 117.211, 117.221
CASE
EC v MIMIA [2004] FCA 978
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicants are citizens of Liberia who are currently living in Guinea. Mr Moses Wesseh is now [Age] years old, Josephine is [Age] years old and Helen is 23 years old. They applied for Class AH visas on 26 June 2017 on the basis that they are orphan relatives of their aunt, Ms Fata Sherriff, who is an Australian citizen.
In their application, the applicants claim their mother is Esther Wesseh, who died in 2012, and their father is Jerry Mulbah, who has been missing since 2006. Ms Sheriff says that Ms Wesseh is her half-sister.
A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused their applications because the delegate was not satisfied the applicants are related to Ms Sheriff, or that their parents are deceased or missing.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Ms Sheriff appeared before the Tribunal on 18 July 2023 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from Ms Josephine Kollie. The Tribunal took evidence from Ms Helen Wesseh on 21 September 2023 with the assistance of an interpreter in the Liberian English and English languages.
THE HEARING
The Tribunal asked to hear from the visa applicants on this matter. Ms Sheriff has not been in Guinea or seen Ms Wesseh for many years, and there are questions about the relationship between the applicants and Ms Sheriff and the relationship between each of the applicants.
As a connection with the visa applicants could not be established at the hearing, a further hearing was held on 21 September 2023 to hear from the visa applicants. It was submitted the only suitable interpreter is a Loma interpreter. An interpreter in this language is not available in Australia. The evidence of Helen Wesseh was taken with the assistance of an Liberian English interpreter, engaged in an attempt to communicate with her. Helen said she has difficulty with British English but can speak and understand Liberian English. She was able to answer questions in a free-flowing manner and displayed a good understanding of the questions asked of her.
The Tribunal was able to communicate well with Helen with the assistance of an interpreter in Liberian English.
SECTION 375A CERTIFICATES
Material summonsed from the Department, being the [visa] applications of the applicants’ claimed mother, Ms Esther Wesseh contained a certificate issued under s 375A of the Act. This certificate states the officer’s safety would be at risk if identifying information was disclosed. There is no evidence that supports this assertion, and the Tribunal does not accept that this is a public interest reason. It considers the certificate is not valid.
SECTION 376 CERTIFICATES
There are a number of certificates issued under s 376 of the Act in respect of documents on the Department files.
These documents are internal Department documents which are either reflected in the decision record or are not relevant to this decision. The certificates also cover verification by the International Organisation for Migration (IOM) of the school records and birth certificates, which the IOM verified as genuine as they were not considered counterfeit, fraudulently obtained or falsified/forged. The Tribunal has taken this verification into account, and as this information supports the claims of the visa application and Ms Sheriff, finds this is not adverse information.
JURISDICTION
The decisions to refuse the applicants a visa can be reviewed by the Tribunal under s 338(5) of the Act.
Under reg 4.12(4) of the Migration Regulations 1994 (the Regulations), if a person has:
·     sponsored 2 or more members of a family unit in respect of their primary applications for visas specified in s 338(5) of the Act, and
·     the Minister’s decision on 2 or more members of that family unit are that a visa not be granted, and
·     the decisions are Part 5 reviewable decisions,
then, a sponsor may combine his or her applications for review by the Tribunal in respect of each of the members of the family unit to whom the Minister granted the visa.
The sponsor in this case is Ms Sheriff, the visas are specified in s 338(5) of the Act, and the decisions to refuse to grant the visas are Part 5 reviewable decisions.
To combine the applications for review, the applicants must also be members of a family unit.
Regulation 1.12 of the Regulations defines the term ‘member of the family unit’ as:
(2) A person is a member of the family unit of another person (the family head) if the person:
(a)      is a spouse or de facto partner of the family head; or
(b)is a child  or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:
(i)       has not turned 18; or
(ii)has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c)is a dependent child of a person who meets the conditions in paragraph (b).
This raises some difficulty in determining if the applicants are members of the family unit. The Tribunal has assumed for the purposes of this review that they are members of the family unit where one of their parents is the family head.
Determining if they are members of a family unit will also turn on whether they are, in fact, related. This forms part of the substantive question to be decided, and has been considered further below.
BACKGROUND
Ms Sheriff says the applicants’ mother, Esther Wesseh, is her half-sister. Ms Sheriff said she lived with her father and Ms Wesseh lived with her mother. During the civil war in Liberia, Ms Sheriff fled to Guinea with their father and lost contact with Ms Wesseh.
Ms Sheriff says she re-established contact with Ms Wesseh through the Loma community in 2006. She did not see Ms Wesseh in person after they resumed contact. On reconnecting with Ms Wesseh, Ms Sheriff says she provided financial support to Ms Wesseh and her children, helping Ms Wesseh to establish a business.
According to Ms Sheriff, Ms Wesseh’s husband, Jerry Mulbah went missing in 2006. In the Guinean war she said soldiers raped Ms Wesseh, and when her husband refused to assist, the soldiers took him away and he has not been seen since. Ms Sheriff arranged a search through Red Cross in 2013 and 2014 for Mr Mulbah, but he has not been located.
In 2012, Ms Wesseh was killed, and her death certificate has been verified as genuine through the IOM.
Another claimed sibling, Veronica Wesseh, was found through DNA testing to be related to Ms Sherriff as a half-niece and has been granted a visa. Veronica remains in Guinea as Ms Sheriff says she cannot separate the family members.
The applicants live in Guinea, and their landlord Mr Oye Koivogui has a role as a guardian.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicants applied for the visas on 26 June 2017. At that time, 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 Regulations. The criteria include cl 117.211 which requires that the applicant is an orphan relative of an Australian relative of the person or is not an orphan relative only because the person has been adopted by the Australian relative.
In separate decisions, the delegate refused to grant the visas because the delegate was not satisfied any of the applicants met cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied they were relatives of their Australian sponsor, or that their parents were deceased or missing.
The issue in the present case is whether any or all of the applicants meet the definition of an orphan relative, and if they are the orphan relative of an Australian relative. If they are not related, the Tribunal may not have jurisdiction as their applications cannot be combined.
Is the visa applicant an orphan relative of an Australian relative?
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, which is extracted in the attachment to these reasons. 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.
In the present case Ms Sheriff, is claimed to be the relevant Australian relative. Ms Sheriff is an Australia citizen. Ms Sheriff states she is the half-sister of the applicants’ mother Ms Wesseh.
The applicants provided a death certificate for Esther Wesseh with a date of death of

2 February 2012, and the death certificate has been verified by the IOM. Ms Sheriff was not in Guinea when Ms Wesseh died. Helen gave an account that her mother was in a traffic accident and died. On the information available to it, the Tribunal finds Ms Wesseh is deceased.
Other than Ms Sheriff’s oral evidence that Mr Mulbah may have returned to Ms Wesseh to father Josephine, the remaining evidence including from Ms Wesseh’s [visa] applicantion is that Mr Mulbah has been missing since 2006 when he was taken by soldiers. Helen gave evidence that she has not seen her father, and has not had any contact with him. On balance, the Tribunal finds that Mr Mulbah is of unknown whereabouts, and given the time since this occurred, a presumption of death applies.
DNA test results
It was claimed in the application that the applicants are the children of Esther Wesseh and Jerry Mulbah and are the half-nieces and nephew of Ms Sherriff.
The Department requested DNA tests to establish the relationship between Ms Sheriff and the applicants. These tests found that Veronica, a claimed older sibling, is the half-niece of Ms Sherriff.
The DNA test results were inconclusive about whether the applicants are related to Ms Sheriff.
DNA tests were also conducted to establish the relationship between the applicants, who claim to be full siblings. The DNA tests showed that:
·     Veronica is a half-sibling of Helen;
·     There is no evidence that Veronica is the sibling or half-sibling of Moses or Josephine.
·     There is no evidence that Helen is the sibling or half-sibling of Moses.
·     It is inconclusive whether Helen is the half-sibling of Josephine
·     It is inconclusive if Moses and Josephine are half-siblings.
A further email from Ms Kate Pippia, the author of the DNA test report for Identilab was provided. This email accepts the premise that Ms Sheriff is the half-aunt of Veronica, Helen, Moses and Josephine as their mother was her half-sister. Ms Pippia states that when a test result is inconclusive it does not provide evidence for or against the tested relationship, and an inconclusive result does not mean they are unrelated.
A statutory declaration from Ms Pippia dated 20 June 2023 states DNA has its limitations, particularly for extended relationships such as half-aunt and niece/nephew. A half-aunt and niece/nephew will only have 12.5% DNA in common and the chances of obtaining an inconclusive result are high. An inconclusive result means there is no evidence for or against the relationship, and it does not mean the sample donor is unrelated. Ms Pippia states that a genuine full sibling relationship without a known parent has a 12.5% chance of returning an inconclusive result, and a genuine half-sibling relationship without including a known parent in the testing has approximately 25% chance of returning an inconclusive result.
The Tribunal requested Ms Pippia be made available to give evidence, however the representative declined to call her.
It is accepted that an inconclusive result for a half-aunt relationship with the applicants does not establish that the applicants are not related to Ms Sheriff. However, the results for full sibship are not inconclusive and positively establish that the applicants do not share both biological parents because none of the applicants are related as full siblings.
There is no full or half-sibling relationship between Moses and Veronica or Helen, and there is no evidence Josephine is the full or half-sibling of Veronica. In the absence of any other information from Ms Pippia, this positively establishes that Moses is not the full or half- sibling of Veronica or Helen, and Josephine is not full or half-sibling of Veronica.
As Veronica has a half-aunt/niece relationship with Mrs Sheriff established by the DNA test results, and Ms Sheriff says Ms Wesseh is her half-sister, Veronica is the biological daughter of Ms Wesseh.
It is not suggested Ms Sheriff has another sibling who is a parent of the applicants. Therefore, if Moses and Josephine are not related to Veronica, who has an established relationship with Ms Sheriff, they are not biologically related to Ms Sheriff.
The DNA test results showing the relationship between the applicants establish that documents that list Esther Wesseh as the mother and Jerry Mulbah as the father of the applicants cannot be true for more than one of the applicants because none of the applicants are related full siblings. This means that the statutory declarations and information contained in the visa applications that Ms Wesseh and Mr Mulbah are the parents of the applicants are untrue to the extent they convey that Ms Wesseh and Mr Mulbah are the biological parents of the applicants.
Birth certificates
The birth certificates of all the applicants were provided and have been verified by the IOM as genuine. The birth certificates of the applicants name Esther Wesseh as the mother and Jerry Mulbah as the father. As confirmed by the DNA tests, this is untrue as none of the applicants are full siblings. While the documents may be genuine, the information contained in the documents is untrue.
Josephine’s birth certificate lists Jerry Mulbah as her father. Josephine was born in 2010, four years after Mr Mulbah went missing. The informant for the birth certificate is reported to be the father, Mr Mulbah.
On being asked to comment on this information, Ms Sheriff said that it was possible Mr Mulbah returned for a while to Ms Wesseh, but she could not say because she has not been in Guinea since she arrived in Australia. She said she did not know Ms Wesseh was pregnant with Josephine until her niece, Ms Josephine Kollie, went to Guinea for her wedding and saw Ms Wesseh. She said she did not ask the name of Josephine’s father, and now the person who could give this information, Ms Wesseh, is deceased. She later said Mr Mulbah could not be Josephine’s father.
Ms Sheriff said she arranged for the birth certificates for the children, and the children’s landlord obtained the birth certificates with the information she provided. Ms Sheriff said she realised Mr Mulbah could not be Josephine’s father, but Josephine needed to be part of a family unit so she named the same father for all the applicants.
In circumstances where Ms Sheriff acknowledges that information in the birth certificates is not correct, and the information contained in these certificates does not match the DNA test results, the Tribunal does not consider it can rely on the birth certificates.
School documents
The applicant provided school enrolment documents, and the Department sought verification of the details in these documents through the IOM.
Helen
School records for Helen for [School 1] and from [School 2] name Helen’s parents as Jerry Mulbah and Esther Wesseh. These documents have been certified as genuine by the IOM, and the Tribunal accepts this is what was recorded by the schools.
Moses
Enrolment forms for Moses for [School 3] state his mother is Esther Wesseh and his father is Jerry Mulbah. The date of admission to the school is October 2012. The [School 2] form states the guardian declared when he was first enrolled is Mr Oye Koivogui and those responsible for paying school fees are Fata Sherriff and Oye Koivogui. This lists other family members enrolled at the school as Josephine, Helen and Veronica. Moses’ school enrolment with [School 4] was verified by IOM and the Tribunal accepts this is what is recorded by the schools.
Josephine
The school registration for [School 1] for Josephine is verified by the IOM. This states she was first enrolled at four years of age on 22 September 2014. The parent/guardian declared at time of first enrolment was Mr Oye Koivogui stated to be “also landlord”. The persons listed as paying the school fees are Ms Sheriff and Mr Koivogui.
Josephine’s parents are recorded as Esther Wesseh and Jerry Mulbah. Her enrolment with [School 4] is also verified with the IOM.
Delegation of parental authority

Ms Sheriff provided a copy and translation of a document stating it is issued by the Court of First Instance of Kaloum. This states Mr Oye Koivogui delegates parental authority to Ms Sheriff and that the parents of the children, Esther Wesseh and Jerry Mulbah, are deceased.
On being asked why Mr Koivogui would delegate parental authority to Ms Sheriff as he is their landlord and Ms Sheriff is their aunt, Ms Sheriff said this was the recommendation because the applicants were living in his house and had no guardian. They wanted Mr Koivogui to be appointed guardian so he could answer for them. Ms Sheriff said Mr Koivogui went to the police station and had to pay money for the paper.
Birth records
Ms Sheriff was asked to provide any birth records to establish that Ms Wesseh is the mother of Moses and Josephine. Their landlord and guardian, Mr Koivogui provided a statement that in the maternity wards in Guinea, midwives fill out a birth form which is communicated to the municipality to establish the birth certificate. He states the forms stay with the municipality as proof, are stored in archives, and are difficult to find after a few years. Mr Koivogui provided a copy he states he made from the archives.
Two documents were provided that were in French, and a translation was later provided. The document for Moses names Esther Wesseh as his mother and Jerry Mulbah as his father. The document for Josephine also names Jerry Mulbah as her father and Esther Wesseh as her mother.
As the birth records also do not match the DNA test results as Josephine and Moses are not full siblings, the Tribunal does not consider it can rely on these birth records.
Financial support
Ms Sheriff provided Ria Money Transfer receipts with the visa applications showing five transfers from her to Mr Koivogui in 2012 and 2013. There is a Western Union transfer from Ms Sheriff to Ms Beavogui in 2012. There is a receipt stating Helen Wesseh has transferred money to Ms Sheriff in 2017. A Western Union transfer from Ms Sheriff to Helen Wesseh, with Helen having an address in Liberia, is dated 23 June 2018.
After the conclusion of the proceedings, Ms Sheriff provided a statutory declaration stating she has been providing financial support for Helen, Veronica, Moses and Josephine even when their mother was alive, and became the sole provider after her death. Ms Sheriff states she collects items over the course of six months and then packs the items and cash into a barrel that she ships through a community member to the applicants. She attached photographs of four people next to a barrel which she states is the last barrel of goods and money that she sent. The barrels in the photographs are marked “Anita Kollie”.
Ms Sheriff also declares she sends money electronically through Western Union. She states that she had sent money directly to Helen in the past, but when Helen collected the money she was followed by some men who tried to grab her bag. When she did not let go of the bag, Helen was beaten. Ms Sheriff feared for her safety and started sending money to other people for the applicants. She said she sent money to Mr Koivogui but stopped doing this because she thought he was taking advantage of her. She sends money with the assistance of her niece Anita Kollie who in turn sends the money to her brother-in-law in Guinea through Ria Money Transfer. She has also sent money to the applicants through Mr Koivogui’s wife and Abraham Komara, a childhood friend.
Ms Sheriff provided screenshots of Western Union transactions, acknowledging they do not show transactions from her account. She said she had requested a detailed transaction statement from Western Union but has not received it. No further information on money transfers through Western Union was provided to the date of this decision.
A statutory declaration from Musa Kamara states that in September 2017, November 2017 and April 2018 Ms Sheriff gave him money to hand to the applicants. Mr Kamara states Ms Sheriff has given him four boxes including clothing, a television, footwear, schoolbooks and bags. He states he brought dresses from the children for Ms Sheriff when he was in Conakry in Guinea in June 2023, and Ms Sheriff gave him items to send to the applicants in August 2023. Attached is a draft bill of lading with the consignee listed as Mr Kamara.
A statutory declaration from Ms Kollie states she facilitates financial support on behalf of Ms Sheriff by sending money to her brother-in-law, Joseph Sympogui. Ms Kollie states Helen has been the target of robbery on several occasions, and they minimise the risk by sending money through Joseph. Ms Kollie states all transactions were through Ria Money Transfer and they have requested a statement but have not received a response. Attached is a screenshot of an unconfirmed transfer of 1000AUD to Joseph Sympogui and a series of screenshots of text messages about money transfers. The origin of the messages is not identified. Helen also gave evidence that she is sent money through Joseph Sympogui.
The information on financial support Ms Sheriff provides to the applicants is equivocal, and there is little to show direct financial support of the applicants by Ms Sheriff, particularly after the death of their mother. Additional information on money transfers through Western Union and Ria has not been provided. While the Tribunal accepts that Ms Sheriff has sent financial support to various people in Guinea, it places little weight on this information to support a contention that the applicants are the orphan relatives of Ms Sheriff.
Statements from third parties
Mr Koivogui states he was Esther’s landlord and is the legal guardian of her children Helen, Veronica, Moses and Josephine Wesseh. He states Esther and Jerry lived happily there with their whole family, and he recalls seeing Esther pregnant with Moses and with Josephine. He states since Esther’s death Helen, Veronica, Moses and Josephine have lived under his guardianship with support from their aunt Fata Sheriff.
This statement is in English, and Ms Sheriff said that Mr Koivogui does not speak English but does speak French and Loma and must have had his statement translated by someone at the school.
A statement from Akoi Beavogui states she knows Ms Wesseh as they were all tenants to Oye Koivogui from November 2004 until Esther’s death. Ms Beavogui states she knew Jerry as the father of the children and saw Esther pregnant with her son Moses. No identity documents were provided with this statement.
A statement from Josephine Kollie was provided and as she gave oral evidence, this is discussed further below.
Statements were provided from Veronica and Helen, with Helen stating she recalls her mother’s pregnancies with Moses and Josephine, and Veronica stating she recalled her mother’s pregnancy with Josephine.
As previously found, if Ms Wesseh is the mother of Moses, she cannot be the mother of Helen and Veronica, and as Veronica is the only person with an established relationship with Ms Sheriff, the Tribunal has found that her mother is Ms Wesseh. It is not satisfied these statements show Moses and Josephine are relatives of Ms Sheriff.
Red Cross
Ms Sheriff provided a letter from the Red Cross dated 29 January 2014 stating they have been unsuccessful locating Mr Mulbah. The Tribunal accepts his has been missing since 2006.
Credibility
Ms Sheriff, her niece Ms Josephine Kollie and the eldest visa applicant Ms Helen Wesseh gave evidence to the Tribunal. Each of them gave evidence that does not match the DNA test results.
For example, Ms Kollie gave evidence that she saw Ms Wesseh pregnant with Josephine. The DNA tests show Josephine is not a full or half-sibling of Veronica, who is the only person with a confirmed relationship to Ms Sheriff. This indicates either Ms Wesseh is not Veronica’s mother, or Ms Kollie is not telling the truth about seeing Ms Wesseh pregnant with Josephine.
Helen gave oral evidence that she saw her mother pregnant with Moses. Moses is not the full or half-sibling of either Helen or Veronica. Either Ms Wesseh is not Helen’s mother or Helen is not telling the truth.
As the oral evidence of the witnesses does not correlate with the DNA tests, little weight is given to the oral evidence of Ms Sheriff, Ms Kollie or Helen where other evidence is not available to corroborate their oral evidence.
Are the applicants related to Ms Sheriff?
Central to this matter is whether the applicants are related to Ms Sheriff.
Helen
The DNA test results show that Helen is a half-sibling to Veronica, who was found to be related to Ms Sherriff (half-aunt). The DNA test was inconclusive to show that Ms Sheriff is Helen’s aunt, however, on the basis of her established sibship with Veronica, the Tribunal is satisfied that Helen is related to Veronica as a half-sibling. While this may or may not mean the parent in common is a relative of Ms Sheriff, it is not possible to determine if this is the case. It is inferred in Helen’s favour that she is related to Ms Sheriff as a half-niece.
Moses
Moses was born [Date]. In his application form it is claimed his parents are Esther Wesseh and Jerry Mulbah. A birth certificate was provide stating his parents are Esther Wesseh and Jerry Mulbah.
In a response to correspondence from the Department about the DNA test results, it is claimed that Moses and Josephine are the offspring of a sexual assault on Ms Wesseh, and that it is likely they have the same mother but different fathers.
The DNA evidence states there is no evidence that Moses is the full or half-sibling of Veronica or of Helen. There is no genetic link between Moses and persons genetically linked to Ms Sheriff either directly, in the case of Veronica (half-niece), or indirectly in the case of Helen (as a half-sibling of Veronica). As previously stated, Helen, Veronica and Moses cannot have the same mother if they are not related as full or half-siblings.
Helen provided a statement and gave oral evidence that she recalls her mother being pregnant with Moses. On being asked how she could recall this if the DNA test results show she is not the full or half-sibling of Moses, Helen said she did recall the pregnancy.
As Moses is not the full or half-sibling of Helen or Veronica, he is not the child of Esther Wesseh or Jerry Mulbah.
It was alternatively submitted prior to the hearing that Moses and Josephine were adopted by Ms Wesseh under arrangements in accordance with the usual practice or custom in their culture.
A “child” of a person has the meaning given in s 5CA of the Act. It includes a person who is adopted within the meaning of the Act. The term “adopted” is defined in reg 1.04 of the regulations. As it applies in this case this includes arrangements entered into outside Australia that are taken under reg 1.04(2) to be in the nature of adoption.
Regulation 1.04(2) states arrangements are taken to be in the nature of adoption if:
(a)the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b) the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
(c)     the Minister is satisfied that:
(i)       formal adoption of the kind referred to in paragraph (1)(b):
(A)was not available under the law of the place where the arrangements were made; or
(B)     was not reasonably practicable in the circumstances; and
(ii)  the arrangements have not been contrived to circumvent Australian migration requirements.
Information provided to the Tribunal by Ms Sheriff included the UNICEF Committee on the Rights of the Child, Guinea which states that while adoption is available, custom allows a child without a parent to be entrusted to a member of the family or a friend of the family who then has the responsibility of caring for the child as if the child were their own.
The UNICEF Child Notice Guinea 2015 states at p.19 and pp. 67–68 that the custom of placing a child without a family into the care of a relative outside all administrative and legal checks is widespread. An article by Moller and Minard “Hidden Children: Refugee Fostering in Guinea” states refugee families in and around refugee camps eventually take most children separated from their parents into informal foster care arrangement.
It is accepted that arrangements where children were cared for by family or friends is the usual practice or a recognised custom for children in Guinea and the Tribunal accepts that formal adoption arrangements were not necessarily practicable.
It became evident during the hearing that Ms Wesseh applied for a [visa] in 2009. The Tribunal summonsed the application form for the [visa]. This application lists Helen Wesseh, “Vironica” Wesseh and Moses Wesseh as her children. Ms Sheriff was her sponsor and is listed as her sister in her application. In the statement accompanying her application, Ms Wesseh claims she was raped in 2006 when she was eight months pregnant.
As Moses was included in Ms Wesseh’s 2009 application for a visa, this indicates he has been claimed to be part of her family unit over a long period of time.
The difficulty with assessing if the arrangements are made in accordance with the usual practice or a recognised custom in this case is that the only information presented to the Tribunal is that Moses is the biological child of Esther Wesseh as information was presented that Mr Koivogui, Helen, Veronica and Ms Beavogui saw her pregnant with him. This is inconsistent with Veronica and Helen being her biological children.
The circumstances of Moses’ birth are unknown, and his biological parents have not been identified. Moses was born in 2010 in Guinea, and the circumstances in which he could be separated from his parents have not been identified.
It is submitted that Ms Wesseh told Ms Sheriff the visa applicants are her own children. As not all the children are Ms Wesseh’s children as shown by the DNA tests, and as Moses is not a sibling of Veronica or Helen, and Josephine is not a full or half-sibling of Veronica, the Tribunal does not accept this is true.
It is further submitted the adoption of the children by custom is also shown by Ms Wesseh declaring the children as her own to the Guinean authorities as evidenced by birth certificates and court documents. Ms Sheriff said the documents were obtained by Mr Koivogui. The documents have been found to contain information that is not true as the applicants do not share both biological parents, and the Tribunal does not consider it can rely on these documents or find that Ms Wesseh declared the children as her own in these documents. The court documents were obtained after the death of Ms Wesseh.
It is claimed the visa applicants lived at the same residence as siblings under the care of Ms Wesseh and this supports the claimed adoptive relationship. The Tribunal does not consider it can rely on the statements and oral evidence that this is the case, given Mr Koivogui, Ms Kollie and Helen all state they saw Ms Wesseh pregnant with Moses, which is untrue.

100. It is quite a leap from Moses appearing on Ms Wesseh’s visa application in 2009 to inferring that arrangements have been made that are in the nature of adoption. The Tribunal has no information on how Moses came to be included in Ms Wesseh’s application, what happened to his biological parents or why he was included in this application and is not satisfied he is related to Ms Sheriff because he was adopted according to arrangements made in accordance with the usual practice or a recognised custom in his culture.
101.
As Moses is not a biological or adoptive child of Ms Wesseh, he is not a relative of Ms Sheriff as defined in reg 1.03 of the Regulations and does not meet

cl 117.211(a) of Schedule 2 to the Regulations.
102. While he does not meet the criteria for the visa, as he is not a member of Helen’s family unit, the Tribunal has no jurisdiction as a review of his application cannot be combined with the review of Helen’s application under reg 1.12 of the Regulations.
Josephine
103. Josephine is not biologically related to Veronica. It is inconclusive if she is a half-sibling of Helen or Moses.
104. Ms Sheriff said that Esther did not tell her she was pregnant with Josephine, however her niece Ms Josephine Kollie saw Esther when she was pregnant at her wedding.
105. Ms Kollie provided a statutory declaration which says that Esther Wesseh is her aunt. She states she saw Esther when she was nine months pregnant with Josephine in 2010, and on the day of her wedding ceremony Esther was at her wedding and had labour pains. She says Josephine was born at [Medical Centre] on [Date] and is named after her.
106. The Tribunal called Ms Kollie at the hearing, who said she saw Esther in 2010 and 2019 when she travelled to Guinea. Ms Kollie said Josephine is named after her because she had labour pains during Ms Kollie’s wedding. Ms Kollie said her wedding was 16 or 17 or 19 June. She did not know if Esther had a husband or a partner at that time.
107. The Tribunal does not consider it can rely on the evidence of Ms Kollie as her evidence is not consistent with the DNA test results that show Josephine is not related to Veronica, with Veronica being the only person with an established relationship to Ms Sheriff.
108. Ms Kollie was requested to provide any photographs of Josephine Kollie with Esther at her wedding when Esther was pregnant with Josephine. In response the Tribunal was advised the photographs were destroyed because the marriage had ended.
109. The identity of Josephine’s father has not been disclosed, and Ms Sheriff said she does not know who Josephine’s father is because she did not know Ms Wesseh was pregnant. The Tribunal is unable to assess if Josephine’s father is deceased, incapacitated to provide care or of unknown whereabouts.
110. On being asked why Jerry Mulbah is named as Josephine’s father when he had been missing for four years at that time, Ms Sheriff initially said he may have come back for a period to be the father of Josephine. She later said she named Jerry Mulbah as Josephine’s father for her birth certificate despite knowing he could not be her father because she had to say Josephine belonged somewhere.
111. Helen told the Tribunal that Jerry Mulbah is Josephine’s father but said she has not seen Jerry Mulbah and could not provide any further details about Josephine’s father as she said she could not question her mother about such matters. She could not explain why her father would return and not see his children.
112. In the absence of evidence that establishes that Josephine is a child of Esther Wesseh, and as the Tribunal does not consider it can rely on the oral evidence or written statements regarding Josephine’s parentage, the Tribunal finds she is not a relative of Ms Sheriff.
113. As Josephine is not a biological or adoptive child of Ms Wesseh, she is not a relative of Ms Sheriff as defined in reg 1.03 of the Regulations and does not meet cl 117.211(a) of Schedule 2 to the Regulations.
114. While she does not meet the criteria for the visa, as she is not a member of Helen’s family unit, the Tribunal has no jurisdiction as a review of her application cannot be combined with the review of Helen’s application under reg 1.12 of the Regulations.
115. The remaining criteria need only be conisdered in relation to Helen.
Age – reg 1.14(a)(i)
116. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.
117. At the time of the application, Helen was 17 years old, and reg 1.14(a)(i) was met at the time of application.
Spouse or de facto partner – reg 1.14(a)(ii)

118. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.
119. Helen provided evidence that she does not have a spouse or de factor partner. There is no other information to suggest she has a spouse or de factor partner, and reg 1.14(a)(ii) was met at the time of application.
Relative – reg 1.14(a)(iii)
120. 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.
121. Ms Sheriff is an Australian citizen, and Helen is a relative of Ms Sheriff as a half-aunt, and reg 1.14(a)(iii) is met.
No parental care – reg 1.14(b)
122. 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.
123. The death of Ms Wesseh was described by Helen, and Ms Wesseh’s death certificate has been certified by the IOM, and Ms Wesseh is deceased. Jerry Mulbah has been missing since 2006 and is of unknown whereabouts, and a presumption of death applies.
124. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – reg 1.14(c)
125. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. There is no information to show that the grant of the visa would not be in Helen’s best interests. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.
Has the applicant been adopted by the Australian relative?
126. 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.
127. There is no information to show Moses or Josephine have been adopted by Ms Sheriff, and cl 117.211(b) is not met. There would, in any event, be difficulty establishing jurisdiction as they are not members of Veronica and Helen’s family unit.
CONCLUSION
128. Matters involving children where it is claimed they are living without parental care are difficult and require close attention to all the circumstances. Evidence may not be able to be provided from the country of residence. In this case, where Ms Wesseh has died, and Ms Sheriff had not seen her for many years, there is limited information that can be obtained, and the Tribunal must make findings on the information before it.
129. There are requirements for the grant of the visa that must be met, and one of these requirements is that the applicants are relatives of an Australian relative to be granted the visa. Moses and Josephine do not meet the requirements to be a relative of Ms Sheriff. As a result, the decisions in relation to Moses and Josephine must be affirmed.
130. Helen is a relative of Ms Sheriff and meets the elements of the definition of orphan relative at the time of the application and she meets cl 117.211 of Schedule 2 to the Regulations. Given these findings, the appropriate course is to remit Helen’s visa application to the Minister to consider the remaining criteria for the visa.
131. The criteria for the grant of a Subclass 117 visa are not met by Moses and Josephine, and the decision in relation to Moses and Josephine is affirmed. There have been no claims advanced in respect of the other visa subclasses in Class AH.
DECISION
132. The Tribunal has no jurisdiction in relation to the first and second named applicants’ applications for Child (Migrant) (Class AH) visas.
133. The Tribunal remits the third named applicant’s (Helen Wesseh’s) application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that she meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations

Kate Millar
Senior Member

ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.14Orphan relative
An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:
(a)the applicant:
(i)has not turned 18; and
(ii)does not have a spouse or de facto partner; and
(iii)is a relative of that other person; and

(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

[2023] AATA 3983

26 October 2023

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