Almero (Migration)

[2024] AATA 2447

Almero (Migration) [2024] AATA 2447 (26 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ryam Jordan Santiago Almero

VISA APPLICANT:  Mr Stephen Kenneth Maitim Almero

CASE NUMBER:  2316216

HOME AFFAIRS REFERENCE(S):          BCC2021/2001184

MEMBER:Deputy President Justin Owen

DATE:26 June 2024

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations; and

·cl 101.221(1) of Schedule 2 to the Regulations.

Statement made on 26 June 2024 at 12:25pm

CATCHWORDS 

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – satisfied that the review applicant is the biological father of the visa applicant – DNA evidence – visa applicant is a ‘dependent child’ of his father – applicant under 25 – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, rr 1.03, Schedule 2, cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122

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 31 August 2023 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 19 October 2021. 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(1).

4. The delegate refused to grant the visa on the basis that cl 101.211 was not met because the delegate was not satisfied the visa applicant was the dependent child of the review applicant at the time of application.

5. The review applicant appeared before the Tribunal on 25 June 2024 via videoconference to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant is a dependent child of a person (as defined in reg. 1.03) who is an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.

   Dependent child criteria

8. 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).

   Dependent child

9. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

10. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

11. The Tribunal notes the delegate refused the application on the basis that they were not satisfied the visa applicant had demonstrated the claimed familial biological relationship between himself and his named father, the review applicant. The delegate noted the visa applicant had provided his Philippines birth certificate which lists the review applicant as his father and Mrs Alma Romina Lozano Maitin as his mother.  His date of birth is listed as 16 February 2004.  The delegate noted that birth registration is legally required within 30 days of birth.  Evidence suggested the birth was not registered however for some 78 days, being stamped and signed on 4 May 2004.  The delegate noted that this meant the primary supporting evidence of the biological relationship between the review applicant and visa applicant was a late-registered birth certificate.  The delegate suggested a delayed birth registration may indicate data manipulation.  The delegate noted the review applicant had signed an affidavit of paternity, acknowledging he was the father of the visa applicant.  The delegate declined however to give the affidavit any positive weight as it was unable to be verified, nor supported by corroborative documentation or information.  The delegate concluded the claimed biological relationship between the visa applicant and review applicant was unreliable.

12. The delegate, in refusing the application, noted the review applicant and visa applicant were invited to undertake DNA testing to demonstrate the biological relationship but had declined the offer on 20 May 2022. Given both the lack of DNA testing and the lack of any new evidence supporting the claimed relationship, the delegate concluded on balance that they were not satisfied of the existence of a biological family relationship and refused the application.

13. On 10 October 2023, the review applicant applied to the Tribunal for review of the delegate’s decision.    

14. On 28 March 2024, the Tribunal wrote to the review applicant inviting him to provide DNA evidence of the claimed biological relationship between himself and the visa applicant.  The review applicant and the visa applicant accepted the invitation to provide DNA evidence on 3 April 2024

15. On 28 May 2024, the Tribunal received correspondence from Identilab. The Parentage Testing Procedure Report dated 28 May 2024 stated that parentage testing procedures were carried out from 24 May 2024.  The report stated the review applicant was 270,000,000 times more likely to produce a child with the required alleles than an unrelated man drawn randomly from the South East Asian population.  This equated to a Relative Chance of Paternity of 99.99999964%.

16. The Tribunal is satisfied therefore that the review applicant is the biological father of the visa applicant. 

17. The visa applicant was under the age of 18 years at the time of application, being born on 16 February 2004.  He was 17 years and 8 months old at the time of application on 19 October 2021. 

18. At the Tribunal’s hearing of 25 June 2024 the review applicant stated the visa applicant was not, and had never been either married or in a de facto relationship.  The Tribunal accepts the claim.

19. The Tribunal accepts the visa applicant is a ‘dependent child’ of his father, the review applicant, who is an Australian citizen and an eligible person, as defined in reg. 1.03 at the time of application and the time of decision.   

20. The Tribunal notes an applicant for a Child visa who is under 18 years is a ‘dependent child’ merely by fact of their age and does not require consideration of whether they are also ‘dependent’ within the meaning of reg 1.05A. Where an applicant was under 18 at the time of application they are also assessed at time of decision as if still under the age of 18, regardless of whether they have since turned 18.   

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

    Applicant under 25 or incapacitated for work

22. At the time of application, the visa applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl 101.211(1)(b), (2).

23. The visa applicant was born on 16 February 2004.  The application was made on 19 October 2021.  The visa applicant was 17 years and 8 months old at the time of application.  He is 20 years and 4 months of age at the time of decision. 

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

    Child-parent relationship

25. 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).

26. As discussed above, on 28 May 2024 the Tribunal received correspondence from Identilab. The Parentage Testing Procedure Report dated 28 May 2024 stated the review applicant was 270,000,000 times more likely to produce a child with the required alleles than an unrelated man drawn randomly from the South East Asian population.  This equated to a Relative Chance of Paternity in relation to the visa applicant of 99.99999964%.

27. This DNA evidence is supported by the visa applicant’s birth certificate from 2004 as well as signed affidavits by the review applicant admitting paternity as well as explaining the delayed registration of the visa applicant’s birth. 

28. The Tribunal is satisfied therefore that the review applicant is the biological father of the visa applicant. 

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

30. For the reasons above, the criteria in cl 101.211 and cl 101.221(1) are met.

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

    DECISION

32. 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 of Schedule 2 to the Regulations; and

    ·cl 101.221(1) of Schedule 2 to the Regulations.

    Justin Owen
    Deputy President

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …