Alam (Migration)

[2021] AATA 1236

Alam (Migration) [2021] AATA 1236 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Asma Alam

VISA APPLICANT:  Mr Rizvi Rashid

CASE NUMBER:  1930519

HOME AFFAIRS REFERENCE(S):          2016034312 OSF2016/034312

MEMBER:David Crawshay

DATE:15 March 2021

PLACE OF DECISION:  Melbourne

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 101.211(1)(c) of Schedule 2 to the Regulations; and

·cl 101.211(1)(c) for the purposes of cl.101.221(2)(a) of Schedule 2 to the Regulations.

Statement made on 15 March 2021 at 3:02pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – child of the sponsor – DNA test – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 101.211, 101.221

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 Home Affairs on 28 August 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 29 March 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211, which requires among other things for the visa applicant to be the child of the review applicant at the time of application

4. The delegate refused to grant the visa on the basis that cl 101.211 was not met because the delegate was not satisfied based on the evidence that the visa applicant was the child of the review applicant.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act. In particular, the Tribunal was able to make its decision on the basis of the review applicant providing results of a DNA test between the parties that showed that they were related as mother and son.

6. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant is the child of the review applicant.

   Dependent child criteria

9. 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).

   Child-parent relationship

10. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

11. On 15 March 2021, the Tribunal received an email from the review applicant through her representative, which attached the results of a DNA test conducted between the review applicant and the visa applicant dated 12 March 2021. The test showed a probability of maternity of above 99.99 percent.

12. The Tribunal is satisfied that the testing laboratory (Genomics for Life Pty Ltd trading as DNA Qld) is accredited by the National Association of Testing Authorities.

13. The Tribunal is satisfied that the visa applicant is the child of the review applicant.

14. Accordingly, cl 101.211(1)(c) is met at the time of application and continues to be met at the time of decision.

15.   The Tribunal notes that the delegate did not consider other criteria such as the visa applicant's level of dependence on the review applicant under cl.101.211(1)(a). In the absence of such consideration, the Tribunal proposes to remit the matter to allow this to occur.

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

   DECISION

2. 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 101.211(1)(c) of Schedule 2 to the Regulations; and

   ·cl 101.211(1)(c) for the purposes of cl.101.221(2)(a) of Schedule 2 to the Regulations.

   David Crawshay
   Member