Bledee Junior (Migration)

[2018] AATA 4113

Bledee Junior (Migration) [2018] AATA 4113 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Reagan Falleh Bledee Junior

VISA APPLICANT:  Miss Phartimah Bledee

CASE NUMBER:  1613546

HOME AFFAIRS REFERENCE(S):           OSF2013/090150

MEMBER:Kate Millar

DATE:4 September 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 04 September 2018 at 11:53am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – DNA testing – not biological child – no adoption – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 101.211

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 6 July 2016 to refuse to grant Miss Phartimah Bledee a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Phartimah applied for the visa on 24 May 2013. 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 (the Regulations). The criteria for the grant of the visa include at cl.101.211 that the applicant is the dependent child of the Australian citizen or permanent resident.

4. The delegate refused to grant the visa on the basis that cl.101.211 on the basis that Phartimah was not the dependent child of Mr Bledee as DNA test results had concluded there was a 0% probability that he was the father of Phartimah. As a result, the delegate found Phartimah did not meet cl.101.211 of Schedule 2 of the regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether Phartimah is the child of Mr Bledee or was adopted by him at a time he was not a an Australian citizen or permanent resident. 

7. Mr Bledee said he was in a relationship with Phartimah’s mother between 1999 and 2000, and was separated from her mother when fighting broke out in Liberia and Sierra Leone. They were separated when he fled to Guinea in 2000.  Mr Bledee was granted a subclass 200 visa on 17 April 2003 and came to Australia on 18 July 2003. 

8. In October 2006, he again established contact with her mother and was told that when the fighting broke out and they were separated she was pregnant with his child. 

9. Mr Bledee said that in 2010 he travelled to the United States and then went to Guinea to see Phartimah.  He states Phartimah’s step-father died in a car accident on 3 March 2018, and as her mother is now a single mother she is vulnerable.

   Dependent child criteria

10. 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.  

    Child-parent relationship

11. 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).

12. In this case, DNA test results show a 0% probability that Mr Bledee is the father of Phartimah.  Mr Bledee said that the birth certificate lists him as the farther and he believes he is her father.  He said he supports her financially and morally and he was shocked that the DNA test showed he was not her father

13. Mr Bledee submits that the DNA test is only one test and that being named on the birth certificate should be recognised, as it is under the Family Law Act 1975.  He states family is not a biological construct and that a person can be accepted as a child of another in a sociological sense.  He submits that family can mean a social as well as a biological sense.   He relies on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to stress the important of family reunification and the protection of the family unit.  He provided a statutory declaration from his wife Theresa Fayiah to states she accepts Phartimah is his child and that she visited Phartimah and her mother before she came to Australia in 2006.  He has provide money transfers to Pasceline Simbiano and Sidiki Diabate in Guinea and says he sends money to these people as they are citizens of Guinea and he can only send money to citizens of Guinea and not to others.  His friend Mr George Fomba gave evidence that Mr Bledee regards Phartimah as his daughter and that Mr Bledee had given him gifts for Phartimah when he had travelled to Guinea. 

14. Mr Bledee states that DNA test results have been used unfairly to decide the outcome of Phartimah’s application.

15. As a result of the DNA test results, I am satisfied that Phartimah is not the biological child of Mr Bledee. 

16. In regard to whether she could be considered to be the adopted child of Mr Bledee, cl.101.211(c)(ii) requires that the child was adopted overseas by a person who at the time was not (as it applies in this case) an the holder of a permanent visa but later became a holder of a permanent visa.  As Ms Bledee was not aware that Phartimah had been born until 2006, and was granted a permanent visa in 2003, I am not satisfied he could have adopted her prior to being granted the visa. 

17. Accordingly, cl.101.211(1)(c) was not met at the time of application and the criteria for the grant of a subclass 101 visa are not met. 

18. Phartimah has not made claims in relation to the Subclass 102 visa, and does not meet the requirements in cl.102.211.  She also does not meet the requirements for a Subclass 117 visa. 

    DECISION

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

    Kate Millar
    Member