Hussain (Migration)

[2018] AATA 4935

Hussain (Migration) [2018] AATA 4935 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nazer Hussain

VISA APPLICANT:  Miss Setish Hussain

CASE NUMBER:  1727855

HOME AFFAIRS REFERENCE(S):           OSF2016/036561

MEMBER:Hugh Sanderson

DATE:25 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2018 at 11:18am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 101(Child) – child/parent relationship – DNA test results – no biological relationship – conflicting birth certificate information – review applicant out of Australia around time of conception – no information about biological parents – 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 22 October 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 November 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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

   Background

4. The review applicant was born in Afghanistan and first entered Australia in 1999. He became an Australian citizen in 2007. He married Samera Mohammad Dad in 2004. It was claimed they have three children, Ajmal born in 2005, Setish (the visa applicant) born in 2011, and Sana born in 2015.

5. In July 2018 the review applicant’s wife was granted a subclass 309 Partner visa and she entered Australia on 17 August 2018. The child Sana entered Australia on the same day on her Australian passport.

6. The visa applicant applied for the visa on the basis of being the child of the review applicant. Various documents were provided in support of the application including the visa applicant’s birth certificate, identity papers, and the review applicant’s marriage certificate which refers to the birth of the visa applicant.

7. Due to the concerns of the Department as to the identity of the visa applicant, DNA testing was carried out to establish whether the review applicant and his wife were the parents of the visa applicant. The report from Sonic Genetics found that both the review applicant and his wife were excluded from being the parents of the visa applicant. The review applicant was interviewed by the Department where this and other issues in respect of the application were raised with him.

8. The delegate who considered the application noted the following issues:

   ·In response to the DNA testing which showed that the review applicant and his wife were not the parents of the visa applicant the review applicant claimed that the DNA results may have been mixed up or his child switched at birth;

   ·The review applicant stated that he believed the visa applicant was his child and of his blood but he would continue to care for the child regardless;

   ·The review applicant had provided to the Department two birth certificates for the visa applicant which provided different information raising questions as to the validity of those documents;

   ·As the visa applicant’s date of birth was 8 September 2011 she would have been conceived  not more than 42 weeks and not less than 36 weeks prior to her birth, however, over that period from 14 November 2010 to 2 June 2011 the review applicant was resident in Australia while his wife was residing offshore;

   ·DNA results conclusively showed that the review applicant and his wife were not the biological parents of the visa applicant; and

   ·No information had been provided as to who could be the biological parents of the child.

9. Taking into account these matters, the delegate was not satisfied that the visa applicant was the child of the review applicant and therefore did not meet the criteria in cl.101.211(1) and refused the application.

10. The applicant provided a copy of the Department’s decision to the Tribunal.

11. The review applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The review applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

12. The Tribunal set out the reasons relied upon by the Department in reaching their finding that the visa applicant was not the child of the review applicant. In particular, the Tribunal referred to the DNA testing which concluded that neither the review applicant or his wife were the parents of the visa applicant. The review applicant responded to this by saying that he does not know if the visa applicant is not his child and asked if it is claimed she is not his child, to whom should he complain. The review applicant said that he had raised the visa applicant for six years and so she is his child.

13. The review applicant said that the birth certificate provided by him in support of the visa application was obtained about one or two weeks after the birth the visa applicant. The Tribunal noted that a different birth certificate was provided in support of the citizenship application and this called into question the validity of those documents. The review applicant claimed that one certificate was provided by the hospital and the other certificate provided by the family doctor. The Tribunal indicated that it was not plausible that there would be two birth certificates issued by different authorities and this called into question the credibility of the information being provided by the review applicant.

14. The Tribunal noted that the birth certificates provided stated the period of pregnancy was 38 weeks. Even allowing for a pregnancy of between 36 to 42 weeks based on movement records of the review applicant he was not with his wife at the time the visa applicant was conceived. Therefore even if the review applicant’s wife gave birth to a child at that time he could not be the father of the child. The review applicant claimed the movement records were incorrect and provided his passport. He did not point to any stamp in that passport which would indicate that he had travelled overseas at any time over the relevant period from 14 November 2010 until 2 June 2011 which would contradict the information in his movement records.

15. The review applicant’s wife gave evidence claiming that she and the review applicant were the parents of the visa applicant.

16. Both the review applicant and his wife claimed that they had cared for the visa applicant for six years of her life. The review applicant said that there must have been a mistake somewhere. He claimed that they may have been given the wrong child at the hospital.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Child-parent relationship

19. 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).

20. It is claimed that the review applicant and his wife are the parents of the visa applicant. The primary evidence provided in support of that claim is a birth certificate purportedly issued by the Ministry of Public Health. This identifies the review applicant and his wife as the father and mother of the visa applicant. The period of pregnancy stated on the birth certificate was 38 weeks.

21. The review applicant has previously provided to the Department a different birth certificate purportedly issued by the Ministry of Public Health in applying for the visa applicant to be declared an Australian citizen by descent. This document is written in a different hand and provides different information to that provided in the birth certificate provided in support of the current visa application.

22. The review applicant claimed that both certificates were issued one or two weeks after the birth of the visa applicant. He claimed one certificate was issued by the hospital and one certificate issued by the family doctor. The Tribunal does not accept that it is plausible that two birth certificates providing different information would be issued in respect of the birth of a child. The fact that two different birth certificates have been provided for different applications for the visa applicant undermines the credibility of these documents. That the review applicant claims to have obtained these documents himself undermines the credibility of the information he has provided in respect of the application. The Tribunal places no weight on these documents as indicating that the visa applicant is the child of the review applicant.

23. DNA testing has been carried out to establish whether the visa applicant is the child of either the review applicant or his wife. The results of the DNA testing concluded that both the review applicant and his wife were excluded as the biological parents of the visa applicant. The fact that the DNA testing has excluded both the review applicant and his wife as the parents of the visa applicant must be given significant weight when considering whether the visa applicant is the child of the review applicant.

24. The date of birth of the visa applicant was stated to be 8 September 2011. On the birth certificates provided it is stated that the period of pregnancy of the mother was 38 weeks. This would mean that the child was conceived on 16 December 2010. Even allowing for a gestation period of 42 weeks this means the child was conceived no earlier than 18 November 2010. The review applicant’s movement records show that he arrived in Australia on 14 November 2010 and did not depart again until 2 June 2011. The review applicant’s wife was not in Australia at any time over that period.

25. The fact that the review applicant and his wife were not together at the time the visa applicant was conceived provides further weight to a finding that the review applicant is not the father of the visa applicant. Further, if the visa applicant’s wife did give birth to a child on 8 September 2011 and a mistake at the hospital led to the review applicant’s wife being given the wrong child, the review applicant’s wife could not have fallen pregnant to the review applicant as he was in Australia and separate from her at the time she would have fallen pregnant, if indeed she did give birth to any child at that time.

26. The overwhelming weight of evidence leads the Tribunal to conclude that the visa applicant is not the child of the review applicant or his wife. No plausible information has been provided by the review applicant or his wife which would explain the fact that the DNA testing has concluded that they are not the parents of the visa applicant or that the review applicant and his wife were not together at the time the visa applicant was conceived.

27. The Tribunal finds that the visa applicant is not the child or stepchild of the review applicant. Accordingly, cl.101.211(1)(c) is not met at the time of application or at the time of decision. For the reasons above, the criteria in cl.101.211.

28. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Hugh Sanderson
    Member