Koryon (Migration)

This matter concerned a review by the Tribunal of a decision regarding a Child (Migrant) (Class AH) visa, subclass 101. The Review Applicant sought to establish that the Visa Applicant was his dependent child for the purposes of the visa requirements.

The central legal issue before the Tribunal was whether the Visa Applicant met the definition of a "dependent child" under clause 101.211 of the Migration Regulations, specifically the requirement that she be the child of the Review Applicant. This definition, as incorporated by section 5CA of the Migration Act 1958 (Cth), refers to the definition of "child" in the Family Law Act 1975 (Cth), which generally contemplates biological parentage.

The Tribunal considered evidence including the Visa Applicant's birth certificate, which listed the Review Applicant as her father, and the testimony of both the Visa Applicant and her mother. However, the Tribunal gave significant weight to DNA testing conducted on two separate occasions by accredited laboratories, which excluded the Review Applicant as the biological father of the Visa Applicant. The Tribunal found the Review Applicant's explanations for the DNA results, such as environmental factors or witchcraft, to be speculative and unsupported by evidence. While the Visa Applicant's mother maintained the Review Applicant was the father, the Tribunal found her evidence insufficient to overcome the scientific evidence of the DNA tests. Consequently, the Tribunal concluded that the requirement of being the child of the Review Applicant was not met.

The Tribunal affirmed the decision under review, finding that the Visa Applicant did not meet the criteria for a dependent child as required for the subclass 101 visa.