Yenkeni (Migration)

[2017] AATA 495

Yenkeni (Migration) [2017] AATA 495 (20 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Suleman Yenkeni

VISA APPLICANT:  Mr Mubarrack Yankeni

CASE NUMBER:  1514030

DIBP REFERENCE(S):  2015074841

MEMBER:John Billings

DATE:20 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 20 March 2017 at 2:04pm

CATCHWORDS
Migration – Child (Migrant)(Class AH) visa – Subclass 101 – Age of visa applicant –Older than 25 years – Anomalies in given evidence – Earlier birthdate given in error

LEGISLATION
Migration Act 1958

, s 65

Migration Regulations 1994

, Schedule 2 – cl 101.211, cl.101.211(1)(a) - (c), cl.101.221(2), r.1.03(b)(ii) 

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 on 13 August 2015 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, Mr Yankeni (sic)[1] (“Mr Yenkini’s son”) is the son of the review applicant, Mr Yenkeni (sic).  Mr Yenkeni’s son is a national of Ghana.  There is controversy with regard to his age.

   [1] The material contains various spellings of the visa applicant’s family name.  “Yankeni” appears in his birth certificate and passport.  “Yenkeni” appears in the review applicant’s passport. 

3. Mr Yenkeni is a 47 year old Australian citizen born in Ghana. 

4. Mr Yenkeni’s son applied to the Department of Immigration for the visa on 28 January 2015. 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 been made only in respect of Subclass 101 (Child).

5. 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.101.211 which relevantly requires that at the time of application the visa applicant has not turned 25 years, unless at the time, he or she was a dependent child of an Australian citizen (or other relevant person) by reason of being incapacitated for work due to the total or partial loss of his or her bodily or mental functions: see cl.101.211(1)(b), cl.101.221(2) and paragraph (b)(ii) of the definition of “dependent child” in r.1.03. It has not been claimed that Mr Yenkeni’s son has had any incapacity. It is claimed that he was born at the end of 1990 and so had not turned 25 at the date of the application. The delegate was not satisfied about that. The delegate had regard in particular to statements made Mr Yenkeni in or about 2003 connection with his own application for a Partner visa that his son was born in mid-1986. Mr Yankeni applied for review on 15 October 2015. He provided a copy of the primary decision with the application for review.

6. Mr Yenkeni appeared before the Tribunal on 15 March 2017 to give evidence and present arguments.

7. Mr Yenkeni was represented in relation to the review by his registered migration agent. The representative made submissions in writing dated 24 February 2017 and attended the hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The relevant parts of cl.101.211 provide:

   (1) The applicant:

   (a)      is a dependent child of:

   (i)      an Australian citizen; … and

   (b)      subject to subclause (2), has not turned 25; and

   (c)      …

   (i)      is:

   (A)      the child (other than an adopted child); …

   of the Australian citizen ...

   (2)        Paragraph (1)(b) does not apply to an applicant who, at the time of making the

   application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

10. The definition of “dependent child” in r.1.03 is as follows:

    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.

11. The central issue in this case is Mr Yenkeni’s son’s date of birth.

12. Giving oral evidence, Mr Yenkeni described himself as having limited education and a poor memory.   His history includes that he departed Ghana as a young man and travelled through countries including Nigeria and Libya before he reached Turkey where he lived for several years.  He met and married an Australian woman, Rowena Bailey, in Turkey.  Ms Bailey sponsored him for a Partner visa.  Mr Yenkeni travelled to Australia as a visitor before he was granted a Class BC Subclass 100 Partner (Migrant) visa - in March 2004. Mr Yenkeni and Ms Bailey are divorced but they had two children together.   Mr Yenkeni has remarried.  He was not married to the mother of the visa applicant.

13. Mr Yenkeni told the Tribunal that his son is an apprentice mechanic.  He said that his son’s health is good.   

14. There are anomalies in the evidence that the Tribunal considers are not reasonably explained by Mr Yenkeni’s claimed poor memory and limited education. 

15. Documents submitted to the Department include a birth certificate for Mr Yenkeni’s son and the relevant pages of his passport.  They indicate that he was born in 1990.  The birth certificate was issued in 2014.  The passport was issued in 2015.

16. In the written submission to the Tribunal dated 27 February 2017 it is stated that Mr Yenkeni is certain that the 1990 date of birth is correct.

17. The primary decision records that in Mr Yenkeni’s application for the Partner visa his son’s date of birth is given as a date in mid-1986.  The decision further records that during a telephone interview conducted by an officer of the Department on 23 April 2003, Mr Yenkeni said, among other things, that his son was born in 1986 and that the last time he saw him was in 1989 when his son was aged three. 

18. Mr Yenkeni gave oral evidence that his son obtained the birth certificate in 2014 on the basis of an affidavit his son made swearing that he was born in 1990.  Mr Yenkeni confirmed that his son’s passport was issued in 2015 on the basis of that birth certificate.  He said that it was this that made him certain about his son’s date of birth.

19. Mr Yenkeni told the Tribunal he had no recollection of the telephone interview in 2003.  Mr Yenkeni said that his reading and writing were poor so Ms Bailey completed his Partner visa application, asking him for information which she then wrote down.  Mr Yenkeni said it was “possible” that his son’s year of birth was stated in his Partner visa application to be 1986 but he said that was a mistake.  He remarked that he was unaware of the date of birth of a number of family members, including his parents and siblings.  He said that he just mentioned “any date” and Ms Bailey wrote that.  He said that’s what he did in his son’s case because he did not have a birth certificate.  He went further and said he never had a birth certificate for his son.  The certificate issued in 2014 was the first and only one.  He said he was sure about that.  He acknowledged statements in the written submission dated 24 February 2017 that his son was born at home “where official records were rarely kept”; that his family “never kept birth records”; and that in the early 1990s in Ghana birth records “were rarely issued or kept”.  Mr Yenkeni acknowledged that in his application for the Partner visa he provided the date in 1986 but said that he didn’t have anything to “back it”, but he now had something to “back” the date being a date in 1990.  Mr Yenkeni said that it was sometime after he made the Partner visa application that he realised that the age given for his son was “too old” compared with when it was that his son attended primary school.

20. Concerning his son’s biological mother, Mr Yenkeni told the Tribunal that he was unable to recall her family name.  He said that she married a man and went to live in Ivory Coast when his son was aged two-three.  As her husband did not want responsibility for the child she left him with Mr Yenkeni’s family in Ghana.  She has since returned to Ghana.  Mr Yenkeni’s son sometimes has contact with her.  Shown a statement purportedly made by the mother in 2014 that was submitted to the Department (indicating a date of birth in 1990), Mr Yenkeni confirmed her family name and that she had been approached by the family to make the statement. 

21. The Tribunal is mindful that if Mr Yenkeni’s son was born in 1986 Mr Yenkeni would himself have been aged about 16 years at the time whereas if Mr Yenkeni’s son was born in 1990 Mr Yenkeni would have been aged about 21 years.  On the whole of the evidence before it, however, the Tribunal is not satisfied that Mr Yenkeni’s son was born in 1990. 

22. Some statements made in the visa application and some documents submitted relating to Mr Yenkeni’s son’s education appear reasonably consistent with Mr Yenkeni’s son having been born in 1990, though the documents do not bear his date of birth or contain any information about his age relative to other students.  On the other hand, a document first submitted at the hearing relating to junior high school attendance appears inconsistent with statements in the visa application and documents submitted to the Department: see further below.  To be weighed against this evidence is evidence as to what Mr Yenkeni himself told the Department in or about 2003: that his son was born in 1986. 

23. It is important to note that in July 2015 Mr Yenkeni’s son was invited by the Department to respond to the information in Mr Yenkeni’s Partner visa application that he was born in 1986. Mr Yenkeni’s son responded by submitting a statutory declaration and letter by him and a statutory declaration made by Mr Yenkeni, all dated July 2015.  In his statutory declaration Mr Yenkeni’s son declared that Mr Yenkeni made a mistake in his Partner visa application.  In his letter, Mr Yenkeni’s son said that Mr Yenkeni lost his – Mr Yenkeni’s son’s - birth certificate when he was travelling between Ghana and Turkey.  In his statutory declaration Mr Yenkeni declared that 1986 was given as the date of birth in error because at the time he made the Partner visa application his son’s birth certificate was lost and that, apart from that, it was common in Ghana for dates of birth to be unknown.  Invited by the Tribunal to comment on the apparent contradiction in the evidence about a birth certificate, Mr Yenkeni told the Tribunal that what he thought his son meant in his letter, and what he himself meant in his statutory declaration, was that at the time he, Mr Yenkeni, lost the memory of his son’s date of birth.  The Tribunal does not accept that explanation.  The statements are clear that there was a birth certificate that was lost.  The loss of the birth certificate was put forward as the explanation or part of the explanation for the claimed error appearing in the Partner visa application.  Mr Yenkeni’s oral evidence that he was sure that there was no birth certificate for his son issued before 2014 contradicted that. 

24. Significantly, it is not merely the case that Mr Yenkeni provided the 1986 date of birth in his Partner visa application.  There is also evidence that he told an officer of the Department that his son was born in 1986 and, further, that he left Ghana in 1989 when his son was aged three.  That supports the proposition that Mr Yenkeni believed that the year of birth was 1986 and that he intended to provide that information to the Department. 

25. Giving evidence to the Tribunal Mr Yenkeni remarked that many nationals of Ghana, including himself and his son, obtain birth certificates years after their birth.  Material accompanying the submission dated 27 February 2017 supports that.  Such a practice would generally be expected to affect the reliability of the birth certificates.  In the present case, where there is evidence of statements made in 2003 that the year of birth was 1986, the Tribunal is not satisfied on the evidence before it that the correct year was 1990, especially given the anomalies in the evidence that was submitted in an attempt to explain why Mr Yenkeni first told the Department that his son was born in 1986. 

26. Mr Yenkeni told the Tribunal about a friend whose son was born at about the same time that his son was born.  He said the friend’s son was born in hospital so there were birth records for that child.  Mr Yenkeni said in effect that this provided confirmation for him about his own son’s date of birth.  No documentary evidence was submitted in relation to the friend’s child.  But there is a further anomaly to mention, which is important in this context.  The submission stated, and Mr Yenkeni confirmed in oral evidence, that his son was born at home.  This was put forward as one of the reasons why there was no birth certificate from the beginning.  The birth certificate issued in 2014 contains contradictory information.  It records that Mr Yenkeni’s son was born at Effia Nkwanta Hospital. 

27. The Tribunal addresses further the statements made and documents submitted in relation to Mr Yenkeni’s son’s education.  Among other things, it is stated in the visa application that that he attended senior high school from September 2008 to July 2011 so that, if he were born in 1990 as is now claimed, he would then have been aged 17-21.  Country information indicates that in Ghana six years’ primary school is followed by three years’ junior high school and three or four years’ senior high school.  The information appears consistent with students not necessarily commencing primary school at age six.[2]   Whatever the precise position is about that, a further anomaly to be mentioned is that the record of attendance submitted on the day of the hearing, indicates that Mr Yenkeni’s son attended junior high school from 2001 to 2004, which would leave a gap of four years between junior and senior high school if the visa application, and documents relating to post-school education, otherwise recorded accurate information.    

    [2] See and

28. In summary, the Tribunal does not accept the evidence submitted to support the claim that Mr Yenkeni’s son was born in 1990.  That evidence appears substantially based on Mr Yenkeni’s son’s affidavit on which his birth certificate was said to be based.  In contrast are the statements made by Mr Yenkeni to the Department in or about 2003.  The Tribunal does not accept that there was mere mistake that led to Mr Yenkeni informing the Department in connection with his Partner visa application that his son was born in mid-1986. 

29. This consequence is that Mr Yenkeni’s son would have been aged 28 years rather than 24 years as at the date of the application for the Child (Migrant) (Class AH) visa.

30. The Tribunal therefore is not satisfied that at the time the application for the Child visa was made Mr Yenkeni’s son had not turned 25 years.  Further, the Tribunal is not satisfied that, if Mr Yenkeni’s son had turned 25 years at the time of the application for the visa, he was incapacitated for work due to the total or partial loss of his bodily or mental functions. 

31. Accordingly, cl.101.211 is not met.

32. For the reasons given 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

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

    John Billings
    Senior Member