Ege (Migration)

[2020] AATA 1113

Ege (Migration) [2020] AATA 1113 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sahra Ahmed Ege

VISA APPLICANT:  Mr Ahmed Mohamed Omar

CASE NUMBER:  1912259

HOME AFFAIRS REFERENCE(S):          OSF2016/042467

MEMBER:Adrienne Millbank

DATE:20 March 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 101 visa:

·cl.101.211(1) of Schedule 2 to the Regulations

Statement made on 20 March 2020 at 1:55pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – evidence of parent-child relationship – DNA Testing – probability of maternity of 93 per cent – second DNA test taken – an inclusion result greater than 99.5 per cent – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 Home Affairs to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant applied for the visa on 27 June 2016. The delegate refused to grant the visa on 2 April 2019.

2. The visa applicant (the applicant) was born in Somalia in 2009 and is 10 years old at the time of decision. The review applicant (the sponsor), who claims to be the applicant’s mother, was born in Somalia in 1986. She first arrived in Australia in December 2013 on a Partner visa, and is a permanent resident.

3. The delegate made the decision on the basis that satisfactory evidence of the parent-child relationship was not provided as required to satisfy a criterion, cl. 101.211(1), for the grant of the visa under the Migration Regulations 1994 (the Regulations).

4. The sponsor had not declared the applicant as her child in her application for a Partner visa. DNA tests requested by the Department, conducted by DNAQ Paternity & Immigration DNA Testing and received by the Department in January 2017, showed a probability of maternity of 93 per cent. While the delegate acknowledged the DNA report indicated a relative chance that the sponsor was the applicant’s mother, the delegate was not satisfied the results sufficiently supported a definitive mother-child relationship.

5. In a written statement dated 10 June 2016 the sponsor stated that the applicant was born out of wedlock and at the time she migrated to Australia he was being cared for by her mother, the applicant’s grandmother, and for these reasons she did not declare him in her application for a Partner visa. The sponsor’s and the applicant’s birth certificates were provided at the time of application. Also provided were photos taken of the sponsor and the applicant, some with the sponsor’s mother, the applicant’s grandmother, at the time of the applicant’s birth in 2009, and in 2013, in Malaysia.

6. On 7 February 2020 the Tribunal wrote to the sponsor inviting her to undertake another DNA test in support of her claimed biological relationship with the applicant. On 14 February 2020 the applicant’s representative advised that the applicant was seeking an updated DNA test from DNAQ.

7. On 19 March 2020 the Tribunal received from DNAQ a Form 5 Parentage Testing Procedure Report. The report is dated 10 March 2020 and advises that, based on tests conducted in February 2020, the probability the sponsor is the genetic mother of the applicant is 99.994691091226 per cent.

8. The Tribunal notes that the report confirms the same bodily samples were used as those collected by DNAQ in 2016 for the tests undertaken for the Department. The Tribunal is satisfied that DNAQ is a NATA (National Association Testing Authorities) accredited agency and notes that the tests conducted in February 2020 have an inclusion result greater than 99.5 per cent.

9. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

10. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

    DECISION

11. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 101 visa:

    ·cl.101.211(1) of Schedule 2 to the Regulations

    Adrienne Millbank
    Member