Kinship testing

37.7 Australian immigration law and many international instruments recognise the importance of facilitating family reunification for humanitarian and other reasons. The Convention on the Rights of the Child 1989 stresses the need for governments to process applications involving family reunification in a ‘positive, humane and expeditious manner’^[8] where children are involved.

37.8 Some visas granted under the Migration Act require an applicant to demonstrate certain familial relationships. These applications fall into one of two programs:

• the Migration Program; or
• the Humanitarian Program.

37.9 The Migration Program comprises two visa streams: the Skilled Stream and the Family Stream. Entry to Australia via the Skilled Stream is open to potential migrants who have skills or abilities that will contribute to the Australian economy. One visa subclass within this stream enables the migration of skilled relatives of Australians.^[9] Family Stream visas are based on an applicant’s relationship to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. This relationship can include immediate family members, orphaned child relatives, those undertaking care of an Australian relative, and other close relatives.^[10]

37.10 The Humanitarian Program is divided into offshore and onshore components. Within the offshore component, individuals may apply for visas either under the refugee category or the Special Humanitarian Program. Within the onshore component, individuals may apply for either temporary or permanent protection visas. Under the Special Humanitarian program, individuals can apply for humanitarian entry to Australia where they can show an immediate familial relationship to a person holding a permanent protection visa inside Australia, or to a person holding a permanent entry visa outside Australia.^[11] In this context, immediate family members include dependent children, spouse and parents.^[12]

37.11 In addition, individuals applying for almost any kind of offshore visa may include members of the family unit within the application. The Migration Regulations define a ‘member of the family unit’ to include a spouse, a dependent child of either the head of the family or the spouse and his or her children, and other relatives usually living within the family household who are dependent on the head of the family and are unmarried.^[13]

37.12 DIMIA uses genetic test information to help determine the existence of family relationships in a very small proportion of cases that fall within the programs outlined above. The Procedures Advice Manual provides policy and procedural guidance for DIMIA officers regarding the use of genetic parentage and other kinship testing. This advice extends to the standards that testing procedures must meet, the circumstances in which testing should be offered, and how the integrity of the sample is to be protected.^[14]

37.13 The Procedures Advice Manual notes that officers may only offer genetic testing; they do not have power to compel an applicant to undergo genetic testing.^[15] Although laboratories send results to applicants in some cases, test results are usually sent to DIMIA, which then informs the applicant of the results in writing, either directly or through an English-speaking sponsor.

37.14 Generally, genetic testing for kinship is used to support applications, but on occasion DIMIA uses genetic testing where fraud is suspected, for example if the applicant and sponsor are thought to be siblings’.^[16] Testing may also be used as evidence of child trafficking by demonstrating that a woman who is relinquishing a child to another person is not the biological parent of that child.^[17]

37.15 Genetic testing is also used to determine family relationships for the purpose of migration in other countries, including Canada, the United Kingdom and a number of European countries, subject to procedures similar to those used in Australia.^[18]

Family Stream and Skilled Stream

37.16 DIMIA uses about 200 genetic tests per year to help verify claimed relationships in Family Stream cases. For example, in the 2001–2002 program year, 206 tests were used for Family Stream cases, and none for the Skilled Stream.^[19] This represents about 0.5% of the overall family migration intake.

37.17 Genetic testing may be required to establish the relationship between the applicant and sponsor, or to establish the applicant’s family composition. Generally, genetic testing will involve parentage testing but it might also be used to test extended family connections, such as sibling or grandparent-grandchild relationships. In less straightforward cases, the Procedures Advice Manual suggests that the laboratory may need to analyse samples from relatives who are not directly involved in the migration application. For instance, if it is suspected that either of two brothers may be the father of a child, more extensive testing may be required to exclude individuals who are not the parents.^[20]

37.18 Genetic testing is considered most useful in regions where there is a high incidence of document fraud or in countries where official documentation is unavailable.^[21] The Procedures Advice Manual states that genetic testing should be used as a ‘last resort’ where claims are doubtful or if credible documentation cannot be provided to substantiate the claims. Genetic testing should not be used in cases where:

• without undue deliberation officers would ordinarily approve a case on the available documentation by extending the benefit of the doubt; or
• doubts about a case are such that the decision maker would ordinarily have no hesitation in refusing the case.^[22]

37.19 In its submission to the Inquiry, DIMIA emphasised that genetic testing is offered only in the most problematic cases, which might otherwise be refused.^[23]

37.20 DIMIA recognises that applicants may refuse testing for reasons of cost, religion, or practical difficulties such as the inability to locate non-migrating relatives whose samples are needed for testing.^[24] Consequently, the Procedures Advice Manual suggests that, as the costs of genetic testing may be prohibitive for some applicants, an officer should give little weight to an applicant’s decision not to undergo testing, when making a decision on a case.^[25] In contrast, Applicants are notified that if they refuse to be tested, DIMIA’s decision on the application will be based on the available evidence and the reasons for refusal will be taken into account.^[26] The Procedures Advice Manual notes elsewhere that testing is a ‘“self-selection” procedure’ as ‘non-genuine applicants tend not to proceed with DNA testing’.^[27]

37.21 Where an applicant undergoes genetic testing but does not authorise the release of the test results to DIMIA, the guidelines suggest this may increase existing doubts about the relationship, but that the person should be given an opportunity to explain.^[28]

37.22 The Procedures Advice Manual notes that different cultures have different concepts of the family unit and that applicants may not fully appreciate that genetic testing is a test only of biological parentage. The Procedures Advice Manual states that suspected ‘non-birth’ children may still be eligible as ‘members of the family unit’, and advises case officers to consider different concepts of family before offering genetic testing.^[29] Adopted children may be included as members of the family unit, whether adopted by legal means or through ‘customary adoption’. The Migration Regulations acknowledge customary adoptions where:

• the adoption occurred in accordance with usual practice or a recognised custom in the culture of the adoptee and adopter;
• the child-parent relationship between the adopter and adoptee is significantly closer than any such relationship between the adoptee and any other person;
• formal adoption was not available or reasonably practicable; and
• the arrangement has not been contrived to circumvent Australian migration requirements.^[30]

37.23 In Family and Skilled Stream cases, visa applicants must pay the cost of securing any evidence requested by DIMIA as proof of assertions made in the application. This includes the cost of genetic testing.^[31] Testing fees are usually $1000 for a single parent-child test, and increase by several hundred dollars for each extra person sampled.^[32] In tests offered by DIMIA, the person tested consents to the laboratory providing the results directly to DIMIA.

Humanitarian Program

37.24 The Procedures Advice Manual notes that although its guidance on genetic kinship testing is primarily directed to Family Stream cases, in certain circumstances it may be applicable in Special Humanitarian Program decision making.^[33] Examples are where a child has different physical features to other family members; the claimed date of birth seems improbable; or certain background issues raise questions of bona fides. Testing in these cases is performed in the same way as testing in Family Stream cases and is subject to the same guidelines.

37.25 The Procedures Advice Manual suggests that humanitarian and refugee assessment officers should only offer testing in Humanitarian Program cases as a last resort. This is due to the cost of testing and the sensitivities involved in the assessment of humanitarian cases.^[34] In the 2001–2002 program year, genetic tests were used in ten Humanitarian visa applications.^[35]

37.26 As with Family and Skilled Stream cases, the applicant bears the cost of testing, except in special cases—such as refugee applications—where testing may be conducted at the government’s expense.^[36]

Genetic testing laboratories

37.27 The Procedures Advice Manual states that DIMIA adopts the benchmark guidelines established in the Family Law Regulations 1984 (Cth) (FL Regulations) in relation to the level of accuracy required for genetic parentage testing (see Chapter 35). As a matter of policy, it is recommended that cases be referred to two Australian laboratories that have been accredited by the National Association of Testing Authorities, Australia (NATA) for parentage testing—DNALABS.SIVF and Genetic Technologies.^[37]

37.28 The Procedures Advice Manual specifies circumstances in which it might be appropriate to use different testing laboratories. These include situations where all sample donors are offshore or where clients refuse to use the DIMIA-recommended laboratories. While DIMIA cannot prohibit an applicant from having a test performed at a laboratory of his or her choice, the Manual states that applicants should be counselled about the ‘potential difficulties’ of having tests performed by other laboratories. These difficulties include unexpected costs, administrative difficulties associated with international cases, testing capacity (some laboratories lack the capacity to test a range of racial groups), and the sample types the laboratory is capable of testing.^[38]

The offer of testing

37.29 Once it has been determined that genetic testing is appropriate, the Procedures Advice Manual lays down a suggested checklist of procedures. Officers are directed to check with the laboratory that the required testing is possible and to determine which relatives must be sampled. An offer of genetic testing is then made to the applicant in writing.

37.30 A standard letter is available, which covers most points. However the Procedures Advice Manual indicates that officers should be prepared to offer personal counselling on:

• why genetic testing is being offered;
• the applicant’s right of refusal;
• the conclusive nature of results;
• the sampling procedure; and
• costs.

37.31 This letter is sent either to the applicant or, where there are language barriers, to the Australian sponsor. The sponsor is then responsible for explaining the offer to the applicant. If the offer of testing is accepted, the Procedures Advice Manual suggests that case officers first check that the applicant can satisfy any health and character requirements. This is done to spare applicants who will fail these criteria the unnecessary cost of genetic testing.

37.32 At present, testing laboratories use forms tailored to sampling under the FL Regulations. The Inquiry understands that DIMIA is considering the development of migration-specific forms, which will include information about the purpose of testing. The forms will require consent to the release of results directly to DIMIA.^[39]

Identity fraud

37.33 The Procedures Advice Manual notes the possibility of ‘identity fraud’ in relation to sample collection.

The recommended laboratories have measures in place to minimise the incidence of identity fraud at the time of sample collection. Even so, there are still avenues for fraud through the presentation at sampling of a birth child instead of a non-birth child, exchange of samples or collusion with doctors. In the case of suspected ‘sibling’ marriages, it would be a simple matter for an applicant to send a completely unrelated person to donate a sample, thereby achieving the desired result.^[40]

37.34 DIMIA has procedures to address concerns about identity fraud. In relation to offshore sample collection, the Procedures Advice Manual suggests that a migration officer should be present at the time of collection to verify the donor’s identity, witness the test and ensure secure dispatch of the sample.^[41] For onshore sample collection, the Manual suggests that sample collectors at pathology outlets should check the donor’s identity against photographs, driver’s licence, passport and so on. For onshore cases, regional offices are advised to send a migration officer to witness the taking of the sample.^[42]

Issues and problems

37.35 A range of concerns arise from the use of genetic testing to establish familial relationships for the purposes of migration decision making. These include:

• the lack of express backing for genetic testing in legislation or regulations;
• the absence of a requirement that applicants be given information about the possible consequences of kinship testing or that they be informed about counselling;
• privacy concerns in relation to the delivery of genetic test results;
• the potential for identity fraud in the collection of samples for testing; and
• the cost of testing for migration applicants.

Lack of legislative backing for testing

37.36 At present, there is no specific backing for genetic kinship testing in migration decision making in either the Migration Act or Migration Regulations because DNA testing is not a legal requirement for the grant of a visa. The procedures for requesting and administering testing are covered only by departmental guidelines contained in the Procedures Advice Manual. This raises questions about the adequacy of protections afforded to applicants.

37.37 As previously mentioned, Family Stream and Skilled Stream applicants are not compelled to undergo genetic testing. The Inquiry understands that DIMIA has no immediate intention to legislate for the use of genetic testing in Family Stream and Skilled Stream cases. DIMIA stated in its submission that to do so would be

extraordinarily complex given the widely varying probabilities which can be reached according to the type of relationship being tested and the relatives available to be sampled.^[43]

37.38 DIMIA also pointed out that this complex issue is best dealt with in policy documents, and that other safeguards to protect applicants are already in place. These include the inclusion of procedural fairness principles in the Procedures Advice Manual and the operation of the Privacy Act. DIMIA highlighted the policy of offering genetic testing only as a last resort as a factor weighing against legislative change. It also noted that in a recent international inquiry its procedures were compared favourably with other countries.^[44]

Consent, counselling and the provision of information

37.39 Chapter 35 discussed the emotional impact that parentage testing may have on children and parents. These effects result from the potential of tests to reveal sensitive information about the composition of a family. For example, kinship testing may reveal the unexpected information that a child is not the biological offspring of his or her ‘social’ parent. Such information may have a disruptive or emotionally distressing effect on families.^[45]

37.40 While applicants must be made aware that kinship testing is voluntary and not a requirement of a migration application, the Procedures Advice Manual does not require the provision of information about the potential consequences of testing. However, officers are required to advise the applicant of why testing is being offered, the right to refuse testing, the conclusive nature of results, the sampling procedure and its cost.

37.41 Additionally, the Procedures Advice Manual does not require applicants to be informed of the availability or desirability of counselling. In Chapter 35, the Inquiry notes that counselling can be an effective means of ameliorating some of the potentially adverse consequences of parentage testing, especially for children. The same is true of kinship testing in the context of migration.

Privacy concerns

37.42 The potentially sensitive nature of genetic kinship test results raises privacy concerns. At present, test results are often delivered to an applicant’s English-speaking sponsor, who is responsible for translating and delivering the results. In doing so, the sponsor may become aware of information that was previously unknown to the applicant or kept confidential, and which the applicant may not want the sponsor to know.

37.43 For some applicants, this disclosure might be distressing or dangerous. Consider an example raised in one submission of test results that show a female applicant’s child is not the biological offspring of her husband. If these results are delivered to her husband, as her English-speaking sponsor, they may reveal an infidelity. In some countries adultery is punishable by death and revealing the test results could therefore endanger the applicant’s life.^[46]

37.44 The Procedures Advice Manual notes that there are significant confidentiality issues associated with genetic kinship testing and suggests ‘test results should be handled accordingly’.^[47] However, the Procedures Advice Manual does not provide guidance on protecting the privacy of genetic test results, nor does it direct officers to warn applicants about the consequences of unexpected results. As noted above, information held by DIMIA in relation the migration applications is covered by the provisions of the Privacy Act.

Integrity of the testing process

37.45 The Procedures Advice Manual requires migration officers to be present when samples are collected offshore. In onshore cases, a migration officer need not be present to check the identity of a donor. This could provide an opportunity for applicants to give false samples.

37.46 As discussed in Chapter 35, NATA accredited laboratories generally comply with the FL Regulations in the conduct of parentage testing. However, NATA permits accredited laboratories to conduct testing that does not comply with these requirements in certain circumstances.^[48] The FL Regulations prescribe procedures in relation to the collection, storage and transportation of samples to the laboratory.^[49]

37.47 As already noted, the Procedures Advice Manual does not require onshore testing to be undertaken by NATA accredited laboratories, although migration officers should endeavour to ensure testing is carried out at laboratories recommended by DIMIA. The Manual states that laboratories will usually have their own procedures for ensuring the integrity of testing, and these procedures are relied upon as protection against identity fraud. As migration officers do not require applicants to use a particular laboratory to perform the tests, this may allow applicants to have testing carried out at laboratories with less stringent controls.

37.48 When an applicant seeks to have testing performed by a non-accredited or overseas laboratory, applicants are counselled on the potential difficulties of using other laboratories, including costs and inadequate facilities.^[50] DIMIA will also investigate the laboratory’s testing standards to ensure that the results will be acceptable evidence of kinship.^[51] With the applicant’s permission, DIMIA may request evidence of the identity checking measures undertaken by a laboratory, as well as its testing system. If the applicant refuses permission, or if DIMIA is not satisfied of the integrity of the testing procedure, DIMIA may request the applicant to undergo testing through a DIMIA-approved laboratory, or may decide the case on the existing evidence.

Cost of testing

37.49 Because of the high cost of testing, some applicants may choose not to undergo genetic kinship testing to prove a familial relationship. If the application is unsuccessful for that reason, the substantial cost of the migration application will have been incurred in vain. This suggests the importance of applicants having advance notice of the possibility of genetic testing and the cost of doing so.

Submissions and consultations

37.50 In consultations, both the Refugee Advocacy Service of South Australia and the Immigration Advice and Rights Centre (IARC) voiced concern about the adequacy and consistency of information provided to applicants about genetic testing. It was also suggested that the framing of letters offering testing might lead some applicants to regard testing as a requirement, rather than as an opportunity to provide additional evidence.^[52] IARC suggested that some of these problems could be overcome by informing applicants at the start of the application process that they may be requested to undergo genetic testing.^[53]

37.51 DP 66 proposed that DIMIA should review its policies and procedures on the provision of information to applicants about kinship testing, particularly with respect to the implications of testing and the desirability of seeking counselling before or after testing.^[54] Submissions expressed considerable support for this proposal, and many, such as the Migration Institute of Australia, noted the importance of providing sufficient information to applicants about the testing process, its implications, and the benefits of counselling if an unexpected result is produced.^[55] The Centre for Genetics Education suggested that DIMIA officers should be educated about genetic testing to better equip them in advising applicants. The Association of Genetic Support Australasia agreed,^[56] while the Department of Human Services South Australia highlighted the importance of obtaining fully informed consent to testing.^[57]

37.52 Concern was also expressed about the current application of DIMIA policy and the Procedures Advice Manual provisions. IARC stated that in its experience ‘the practice of offering genetic testing does not always reflect [DIMIA] policy guidelines’ and that ‘increasingly, genetic testing is not only being offered as a last resort’. IARC suggested that at times genetic testing is used as a ‘blanket response to problems of, or perceptions of, document fraud in particular countries and regions’. IARC argued that in doing so, DIMIA had placed the burden of proving relationship onto the applicant, disadvantaging those who might wish to use other forms of proof in support.^[58]

37.53 IARC suggested that one solution to this issue would be for DIMIA to inform applicants of the reason why the documents offered as proof of a relationship have been doubted. This would allow applicants to respond directly to these concerns, which might be resolved without recourse to expensive genetic tests. IARC also pressed for applicants to be notified more fully of the adverse inferences that might be drawn from a refusal to be tested.^[59]

37.54 DIMIA, in its submission, stressed that the Procedures Advice Manual guides officers to place little weight on an applicant’s decision to refuse testing. DIMIA also noted that officers are expected to take account of the many valid reasons why applicants might refuse testing.^[60] The Inquiry understands that DIMIA intends to develop guidelines on the provision of counselling.^[61]

37.55 DIMIA also submitted that it might consider widening the number of NATA accredited laboratories available for migration purposes. If so, these laboratories might be listed by gazettal, or employed as service providers under contract to the Commonwealth. In either case, DIMIA suggested that this could provide a statutory basis for the protection of genetic information in the migration context.

37.56 DP 66 also proposed that DIMIA should review the adequacy of its policies and procedures for dealing with identity fraud in relation to kinship testing.^[62] Sub-missions generally agreed with this proposal. For example, the Institute of Actuaries of Australia stressed that the integrity of the genetic testing process needed to be carefully maintained, and that DIMIA should pay careful attention to this matter.^[63]

37.57 Submissions responded favourably to the suggestion in DP 66 that the procedures for conducting genetic kinship testing be given more formal status in the Migration Regulations.^[64] The Association of Genetic Support of Australasia suggested this would increase the transparency of genetic kinship testing procedures.^[65] The Migration Institute of Australia submitted that placing safeguards on genetic testing in legislation, which is subject to parliamentary scrutiny, is preferable to placing such protections in internal policy documents.^[66] Other submissions pointed out that the lack of legal consequences for an officer’s failure to follow the Procedures Advice Manual was problematic.^[67]

37.58 DIMIA, however, opposed legislating for the use of genetic kinship testing. The Department commented that legislation might ‘bind the decision-maker to accept or reject test results which are scientifically open-ended’. Decision makers should be able to decide cases in the light of all available evidence. Where kinship tests are used to establish more remote relationships, decision makers should also be able to take account of their potentially inconclusive nature.^[68]

37.59 More generally, the Androgen Insensitivity Syndrome Support Group Australia recommended the proposed Human Genetics Commission of Australia (HGCA) advise on the development of guidelines for the use of genetic testing in migration decision making.^[69]

Inquiry’s views

37.60 The Inquiry considers that the use of genetic kinship testing in migration decision making should be subject to more formal and comprehensive control to protect individual privacy and personal autonomy.

37.61 Due to the high cost of testing, the Inquiry recommends that applicants be informed early in the application process that genetic testing may be offered to establish kinship. Where DIMIA doubts the veracity of evidence supplied to support an asserted kinship relationship, visa applicants should also be advised that additional evidence (apart from genetic test results) can be provided as alternative proof.

37.62 DIMIA should also review its policies and procedures to address the potential social and psychological consequences of kinship testing. Migration officers should inform applicants about these consequences and the desirability of seeking counselling before or after testing. As an additional protection for offshore cases, panel doctors (who are overseas medical practitioners contracted by DIMIA to perform examinations) should offer counselling when samples are taken, or information about the availability of counselling. In reviewing its policies on counselling, DIMIA could draw on its existing approach to positive HIV test results.^[70] It might also draw on its own approach to the delivery of written opinions on why an applicant has failed the health requirement:^[71] where a health examination has revealed unexpected and potentially distressing information about an applicant’s health, the information is sometimes sent to the applicant’s nominated doctor, who will deliver the information and provide appropriate counselling.^[72] Privacy concerns about the disclosure of test results should be addressed by obtaining consent to release information to third parties, including an applicant’s sponsor.

37.63 The Procedures Advice Manual should also be reviewed to ensure the adequacy of procedures to prevent identity fraud. This review should take into account the procedures and protections contained in the FL Regulations, having regard to the Inquiry’s recommendations in Chapter 35.

37.64 At present, there are limited formal safeguards for applicants because existing practices in relation to genetic kinship testing are regulated by departmental policy. The Inquiry is of the view that the procedures for conducting genetic kinship testing should be given more formal status in order to better protect the genetic information of migration applicants. A balance should be struck between the flexibility of the current arrangements and the development of formalised protections. The Inquiry considers that this can be done most effectively by formalising the general procedures and policies for genetic kinship testing in a ministerial direction made under the Migration Act, while retaining more detailed guidance on their operation in the Procedures Advice Manual. For example, the requirement to obtain consent for the disclosure of results could be placed in a ministerial direction, while the processes for seeking consent, such as the provision of forms, could be contained in the Procedures Advice Manual.

37.65 A ministerial direction has binding force, but can be created and changed with greater expedition than amendments to regulations or legislation. Under s 499 of the Migration Act, the Minister may give written directions to DIMIA about the performance of its functions and the exercise of its powers under the Act.^[73] The direction must be consistent with both the Migration Act and its associated regulations^[74] and can only amplify existing law, not substitute it. The direction is tabled in Parliament, and DIMIA officers must comply with these directions,^[75] which are then incorporated into the Procedures Advice Manual.