Koryon (Migration)

[2021] AATA 4044

Koryon (Migration) [2021] AATA 4044 (7 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr James Mallay Koryon

VISA APPLICANT:  Ms Angel Sangay Koryon

CASE NUMBER:  2105047

HOME AFFAIRS REFERENCE(S):          OSF2018/030844

MEMBER:Andrew McLean Williams

DATE:7 October 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 07 October 2021 at 2:45pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –– DNA testing – review applicant was not the biological father of the visa applicant – decision under review affirmed

LEGISLATION

Family law Act

Migration Act 1958, ss 5, 65

Migration Regulations 1994, 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 on 5 March 2021 refusing 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 21 June 2018. 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).

1. 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, these include cl. 101.211(1)(i), which requires that at the time of the visa application the visa applicant must be the child of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand citizen.

2. The delegate refused to grant the visa on the basis that cl 101.211 was not met because DNA testing undertaken on two separate occasions had revealed that the Review Applicant was not the biological father of the visa applicant.

3. The Review Applicant (‘the Applicant’), who is an Australian permanent resident, appeared before the Tribunal on 7 October 2021 to give evidence and present arguments.

4. The Tribunal also received oral evidence from Ms Esther Sonnie Seeley (the mother of the visa applicant), and Ms Ma Kibbeh Seeley (the maternal grandmother of the visa applicant), each of whom gave their evidence from Liberia, by means of telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English and English languages.  The review in this matter was conducted jointly with an Application for Review in matter No 2104639 on the basis that it involves the same Review Applicant and the issues for consideration are identical in each matter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in this case is whether the Visa Applicant is able to meet the “dependent child” requirements in cl.101.211, which include the requirement that she be the child of the Review Applicant (cl. 101.211(1)(c)(i) refers).

3. “Child” of a person, for purposes of Australian migration law is a concept governed by s.5CA of the Migration Act, which incorporates by reference the definition of child contained in the Family Law Act 1975. The Family Law Act then speaks of a child being “the child of both parties”.  In other words, the biological progeny of both of that child’s nominate parents, such that a person becomes the dependent child of another if they are the biological child of that other person.  Although both the Migration Act and the Family Law Act accommodate the further possibility of children who have been adopted, in this case there is no suggestion that the Visa Applicant has been adopted by the Review Applicant.

1. The Visa Applicant Angel Sangay Koryon was born in Liberia on 19 October 2011 and is now 10 years of age.  Angel Koryon’s Liberian birth certificate lists the Applicant as her father.  Yet, DNA testing conducted by two different accredited laboratories on two separate occasions (28 November 2019 and 18 December 2020) reveals that the Applicant is ‘excluded from identification’ as the biological father of the visa applicant.

2. In his own evidence before the Tribunal the Applicant submits that the DNA test results are not accurate, and that either his exposure to changed environmental factors; or changed lifestyle factors; or some exposure to toxins since his arrival in Australia; or perhaps even “black magic” or “witchcraft” has corrupted the DNA results.  It was put to the Applicant that these explanations were more in the nature of speculation by him, and that no actual evidence now giving rise to a reasonable basis to doubt the reliability of the DNA testing results had been produced before the Tribunal.  When expressed in these terms the Applicant agreed with the proposition and conceded that he had no evidence with which to now impugn the DNA test results.

1. During the Tribunal hearing, the mother of the visa applicant Ms Esther Sonnie Seeley testified that around the time of her conceiving her daughter she had not engaged in sexual relations with any other males other than the Applicant.  The contrary DNA results were put to Ms Seeley, yet the proposition embodied in the DNA test results was not accepted by her, and she remained adamant that the Applicant was the father of her daughter.  Ultimately, the evidence given by Ms Seeley is unable to be accepted by the Tribunal over the DNA test results.  The Tribunal also heard evidence from Ms Ma Kebbeh Seeley who is the mother of Esther and the grandmother of Angel.  Ma Kebbeh Seeley told the Tribunal that her daughter’s child had been fathered by the Applicant, and that she was unfamiliar with DNA evidence.  Ma Kebbeh Seeley’s evidence regarding the paternity of the visa applicant is not able to be accepted by the Tribunal in preference to the DNA tests results.      

2. Accordingly, cl 101.211(1)(c) is not met at the time of application, and continues to be un-met as at the time of the Tribunal’s decision.

3. For the reasons above, the criteria in cl. 101.211 are not met.

4. 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

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

Andrew McLean Williams
Member

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.

   …