Baburi (Migration)

[2018] AATA 1028

Baburi (Migration) [2018] AATA 1028 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sileshi Eba Baburi

VISA APPLICANTS:  Mr Galana Ibsa Eba
Mr Lalisa Ibsa Eba
Mr Abdi Ibsa Eba
Miss Ayantu Ibsa Eba

CASE NUMBER:  1714108

DIBP REFERENCE(S):  OSF2015/075527
OSF2015/075528
OSF2015/075525
OSF2015/075526

MEMBER:Nicholas McGowan

DATE:March 8, 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the Child (Class AH) Orphan Relative (Subclass 117) visa applications with the finding that all of the visa applicants meet the definition of relative under regulation 1.14 for the purposes of considering clauses117.211 and 117.221.



Statement made on 08 March 2018 at 3:14pm

CATCHWORDS

Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Relatives of the review applicant – DNA evidence – Relationship testing results

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cls 117.211, 117.221, r 1.14

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 12 June 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) Subclass 117 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 15 September 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. In this case the Department of Immigration were not satisfied any of the applicants met regulation 1.14. That Regulation requires any applicant for the visa under review to be an orphan relative of another person (the sponsor relevantly in this case). That regulation includes various other requirements ((a), (b) and (c)), which are not part of this review as the Tribunal has confined itself to the basis for the Department’s refusal (as per the AAT President’s Directives): principally, that the applicants were not a relative of the (sponsor) who is their claimed uncle (by full or half parentage to the sponsor’s brother).

4. The Tribunal has had regard to DNA evidence submitted by the parties. This evidence will be shared with the Department of Immigration. It is clear from the test results and conclusions at folio 46 of the Tribunal’s file, that the claims of the uncle (sponsor) as they pertain to the applicants are proven.

5. The Tribunal arrives at this finding noting the DNA expert’s opinion in regards to each applicant, and the relationship testing results as interpreted and fairly applied.

   DECISION

6. Given all the above, the appropriate course is to remit the applicants’ applications to the Minister for further consideration with the finding that all of the applicants meet the definition of relative under regulation 1.14 for the purposes of considering clauses117.211 and 117.221.

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