Abraha (Migration)

[2018] AATA 4922

Abraha (Migration) [2018] AATA 4922 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yemane Etay Abraha

VISA APPLICANT:  Mr Yonas Yemane Abrha

CASE NUMBER:  1618144

HOME AFFAIRS REFERENCE(S):           OSF2015/075666

MEMBER:Kira Raif

DATE:22 October 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 22 October 2018 at 5:01pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – dependent child – DNA testing – no biological relationship –  genuine belief of a parent-child relationship – no evidence of adoption – no discretion to grant visa – decision under review affirmed  

LEGISLATION

Family Law Act 1975 (Cth) ss 60H, 60HA, 60HB

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cls 101.211, 101.221

CASES

Donnell v Dovey [2010] FamCAFC 15

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 11 October 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 Ethiopia born in December 1995. He applied for the visa on 30 November 2015. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the applicant was a child of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya (Ethiopian) and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). 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).

   Is the visa applicant the child of the sponsor?

5. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant claimed to be a biological child of the sponsor and the sponsor stated on the sponsorship form that he is the father of the visa applicant. The visa applicant provided a number of documents with his application including personal documents, evidence of financial transfers, the child’s baptism certificate and other documents.

6. The primary decision record indicates that the applicant and sponsor had completed DNA testing to confirm paternity. On 12 May 2016 DNA Labs advised that the visa applicant was not the biological child of the sponsor.

7. The review applicant provided a written submission to the Tribunal on 17 October 2018. The review applicant states that he never doubted his relationship with the visa applicant and the DNA results had been shattering to both. The review applicant states that for all practical purposes, he has been the father of the child. The child has not known any other father. He has been financially supporting the child and maintained his responsibilities towards the child even after the DNA testing. The review applicant provided a declaration outlining the circumstances of the child’s birth and upbringing. In oral evidence the review applicant states that he brought up the child as his son and always believed him to be his son. He was there from the birth of the child and continues to support the child. He raised the child and provided financial support, including schooling fees and he bought a house for his son to live in. Since he came to Australia, he visited his son many times and they travelled together on holidays. The review applicant provided to the Tribunal photographs of himself with the newborn visa applicant. The visa applicant also gave oral evidence referring to the parent-child relationship between him and the sponsor, stating that there has been nobody else who looked after him and that he has always been reliant on his father.

8. The Tribunal accepts that the review applicant has been responsible for the child’s upbringing and financial support. The Tribunal accepts that both the visa applicant and the sponsor genuinely believed in their parent – child relationship. The Tribunal accepts that the review applicant has undertaken parental responsibilities in relation to the visa applicant. The Tribunal accepts that the negative result would affect the entire family. However, none of these matters establish the sponsor’s relationship with the child. The DNA evidence indicates that the visa applicant is not the biological child of the sponsor, even if all parties concerned believed that relationship to exist.

9. In his written submission the review applicant refers to the definition of ‘child’ in the Citizenship Act, noting that a child is not limited to being a biological child. The Tribunal acknowledges that this is so, although the Tribunal is mindful that for the purpose of this visa application, the relevant legislation governing visa grants is the Migration Act and not the Citizenship Act. Nevertheless, the Migration Act does provide for parent-child relationship otherwise through a biological relationship, including through adoption.

10. The review applicant refers to the various presumptions of paternity under the Family Law Act, arising from cohabitation, birth registration and from acknowledgement. In the Tribunal’s view, these presumptions are rebuttable. In the present case, there is probative evidence in the form of DNA test results showing that the review applicant is not the biological father of the child. The various presumptions of paternity cannot override that evidence.

11. There is no evidence of the visa applicant being adopted by the sponsor. The review applicant’s claim is that he always treated the child as his own and that suggests that there was no adoption, customary or formal, with respect to the child. There was never any intention to adopt – because the review applicant believed the child to be his own child – and there was no action taken to adopt.

12. There is no suggestion that the child was born as a result of artificial conception procedures or through a surrogacy arrangement.

13. The review applicant’s representative submits that the definition of ‘child’ under the Family Law Act is relevant. The Family Law Act defines a ‘step-parent’ as a person who is not a parent of the child, and it is widely accepted that under the Family Law Act ‘parent’ means a biological or adoptive parent and does not include a person who assumes a parental role in relation to a child (see: Donnell v Dovey [2010] FamCAFC 15 at [92]). Sections 60H, 60HA and 60HB of the Family Law Act provide an exhaustive definition as to who is deemed to be a parent. Relevantly, s.60HA defines a child of a de facto relationship as a biological child of both parties to the relationship, a child adopted by both parties to the relationship or by either of them with the consent of the other, or a child born as the result of an artificial conception procedure or under surrogacy arrangements. These circumstances do not apply in the present case.

14. The Tribunal is not satisfied the visa applicant is either a biological child or the adopted child of the sponsor. He is not a step-child of the sponsor. The Tribunal is not satisfied the visa applicant is a dependent child of the sponsor. While it may be that the visa applicant is financially dependent on the sponsor, he is not a child of the sponsor. The Tribunal finds the visa applicant does not meet cl. 101.211.

15. As there is no evidence of adoption, the Tribunal is not satisfied the visa applicant meets the requirements for the Adoption visa. With respect to being an orphan relative, the Tribunal is not satisfied the visa applicant is a relative of the sponsor. The Tribunal is not satisfied the visa applicant meets cl. 117.211.

16. The review applicant told the Tribunal that his son is traumatised by the DNA results and there has been a strain on the family. His children in Australia are waiting for their brother to come to Australia and they would be devastated if he cannot come. The review applicant’s wife also gave evidence to the Tribunal about their relationship with the visa applicant and the impact the refusal will have on their family and the children. The Tribunal acknowledges that evidence but has no discretion to grant the visa. Having found that the visa applicant is not a child and not a relative of the sponsor, the Tribunal must affirm the decision under review.

    Conclusion

17. 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

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

    Kira Raif
    Senior Member