BARAMOTO WALENZELA (Migration)

[2018] AATA 4926

BARAMOTO WALENZELA (Migration) [2018] AATA 4926 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs BERNADETTE BARAMOTO WALENZELA

VISA APPLICANTS:  Mr JOSEPH PIDA BARAMOTO
Mr DERIZE PIDA BARAMOTO
Mr CHRIS NZAPO LATO
Miss DEBORAH GELEGA
Miss SIALO FELAYI  
Miss ANGELE YADEPKE

CASE NUMBER:  1606456

DIBP REFERENCE(S):  F2014/052380

MEMBER:Kira Raif

DATE:23 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first, second, third, fourth and fifth named visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

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

Statement made on 23 October 2018 at 4:41pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – first, second, third, fourth, fifth applicants – nephews and nieces of the review applicant – DNA testing confirms relationship – evidence of parents death provided – sponsor willing to care for children – decision under review remitted for reconsideration

Sixed named applicant – DNA results indicated no biological relationship – child raised within the family – no evidence of adoption – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), r 1.14 Schedule 2 cls 117.211, 117.221

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 on 29 February 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of the Democratic Republic of Congo (DR Congo). They applied for the visas on 25 August 2014. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of their Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 19 February 2018 and 22 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The review applicant was represented in relation to the review by her registered migration agent.

   Relevant law

4. At the time the application was made, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

5. Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl.117.211(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.117.211(b)). The visa applicants must continue to satisfy that criterion at the time of decision, or not do so only because an applicant has turned 18: cl.117.221 of Schedule 2 to the Regulations.

6. ‘Orphan relative’ is defined in r.1.14 of the Regulations. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111 of Schedule 2 to the Regulations. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): r.1.03 of the Regulations. 

   Are the visa applicants orphan relatives of an Australian relative?

7. The review applicant provided to the Tribunal copies of the primary decision records relating to each of the visa applicants, which contain information set out below in relation to each applicant.

8. The review applicant provided a written submission to the Tribunal on 15 February 2018. The review applicant provided evidence of her contact with the visa applicants and evidence of financial support. She also presented medical evidence concerning her health. The Tribunal acknowledges these documents but finds these unhelpful for the purpose of determining the issues at hand.

9. The review applicant claims in her submission that the visa applicants are all siblings and are her nieces and nephews. The review applicant states that her parents had 14 children together and she denies informing UNHCR that they had only four. The review applicant states that she did not declare all her siblings in her own application but she was never asked all their names. The Tribunal does not accept that submission because it is nonsensical that the applicant would be asked to provide names of some of her siblings but not all of her siblings. The review applicant outlined the circumstances of leaving her homeland and she notes she has been assessed as being credible when interviewed by the UNHCR. The Tribunal accepts that this may be so but considers that unhelpful for the purpose of the present application. The Tribunal notes that much of the information is submitted by the visa applicants and not the review applicant and, more significantly, the review applicant concedes that there is a substantial amount of information about her family that she is not aware of. As such, an assessment of her credibility, undertaken by a third party and for a completely different purpose is unhelpful in determining the issues at hand.

10. The representative notes that the primary decisions contain incorrect dates of births in relation to the visa applicant and are ‘likely to be invalid’. No reference is made to any provision to support the representative’s contention that a factual error in the primary decision invalidates such decision or renders the Tribunal unable to conduct the review.

11. With respect to the visa applicants’ ages, the review applicant claims that the presented birth certificates are genuine and the birth certificates and passports show evidence of the children’s ages. The review applicant claims that the children’s parents are deceased. She notes that when the application was made, the children were not able to provide the death records for their father but it has now been provided and in her own declaration, the review applicant explains why the document could not have been obtained earlier.

12. The following information was contained in the primary decision records in relation to each visa applicant.

    Mr Chris Nzapo Lato

13. The visa applicant claims to have been born in November 1998 and he provided with his application a birth certificate issued in March 2013. The delegate accepted that the visa applicant was under the age of 18 at the time the application was made.

14. The visa applicant claims to be a nephew of the sponsor and that his mother is the sister of the sponsor. The applicant’s birth certificate lists his mother as Clementine Baramoto. The primary decision record refers to high incidence of fraud in relation to birth records and relationship records, as well as evidence of parents’ death. The primary decision record indicates that the sponsor made her own visa application in 2009 and did not include Clementine Baramoto as her sister. The sponsor stated at the time that her father had 75 children and could not name all of them. The delegate noted that the sponsor made an FOI request prior to the present application being made, which raised concerns about the credibility of the information provided, noting that it appeared implausible that the sponsor would not refer to the visa applicant’s mother in her own application given that she claims to have the same parents as Clementine Baramoto.

15. In her UNHCR and Department of Immigration interviews, it is recorded that the review applicant stated that her parents had four children, one of whom was deceased, and after the divorce her father had several other relationships. The sponsor stated that her two siblings were Bekpamade and Zelukata, with no mention being made of Clementine.

16. In response to the natural justice letter from the delegate, the visa applicant provided a statement regarding family composition as declared to the DR Congo authorities in 2012. The visa applicant states that the sponsor’s parents had 15 children. The Tribunal is mindful that this contradicts the sponsor’s own statements made in support of her visa application in 2009 when she claimed her parents had four children, one of whom was deceased.

17. This visa applicant and the review applicant had completed a DNA test to establish their relationship. The test confirms that the review applicant is the aunt of the visa applicant. The Tribunal accepts they are ‘relatives’.

18. With respect to his orphan relative status, the visa applicant claims both his parents have passed away. The visa applicant provided a death certificate for his mother and the delegate accepted that she has passed away. The visa applicant claims his father Joseph Zaguy Ndule passed away a long time ago. The sponsor declared in her statement that she met the child’s father a long time ago and there is no death certificate relating to his death. The visa applicant provided a photograph of what he claims is his father’s gravesite with the date of 15 July 2007. The Tribunal does not consider such photograph on its own to be probative evidence of death because it is impossible to determine who the site relates to or that the person identified at the burial site was indeed the visa applicant’s father. The delegate noted that the visa applicant was able to provide a death certificate for his mother issued in 2006 and there appeared to be no reason why there was no death certificate for the father who died in 2007.

19. The primary decision record indicates that the Department received advice from the authorities of DR Congo that residents are able to obtain official documentation to support claimed deaths. In the absence of official death records relating to the father, the delegate was not satisfied that the father had passed away and that the visa applicant was an orphan relative.

20. The review applicant provided to the Tribunal the father’s death record. The Tribunal verified these documents through the overseas post. On 1 June 2018 the Tribunal received advice confirming that the child’s father was a patient at the specified hospital prior to his death and the record of death is contained in the hospital. The person who signed the death certificate confirmed the father’s death. The death certificate has been confirmed as a genuine document. On the basis of that record, the Tribunal accepts that the child’s father is deceased.

    Miss Deborah Gelega

21. The visa applicant claims to have been born in August 2002 and she provided with her application a birth certificate issued in 2013. The delegate accepted that the visa applicant was under the age of 18 at the time the application was made.

22. The visa applicant claims to be a niece of the sponsor and that her mother is the sister of the sponsor. The applicant’s birth certificate lists her mother as Clementine Baramoto. The primary decision record refers to high incidence of fraud in relation to birth records and relationship records, as well as evidence of parents’ death. The primary decision record indicates that the sponsor made her own visa application in 2009 and did not include Clementine Baramoto as her sister. The sponsor stated at the time that her father had 75 children and could not name all of them. The delegate noted that the sponsor made an FOI request prior to the present application being made, which raised concerns about the credibility of the information provided, noting that it appeared implausible that the sponsor would not refer to the visa applicant’s mother in her own application given that she claims to have the same parents as Clementine Baramoto.

23. In her UNHCR and Department interviews, it is recorded that the review applicant stated that her parents had four children, one of whom was deceased, and after the divorce her father had several other relationships. The sponsor stated that her two siblings were Bekpamade and Zelukata, with no mention being made of Clementine.

24. In response to the natural justice letter from the delegate, the visa applicant provided a statement regarding family composition as declared to the DR Congo authorities in 2012. The visa applicant states that the sponsor’s parents had 15 children.

25. This visa applicant and the review applicant had completed a DNA test to establish their relationship. The test confirms that the review applicant is the aunt of the visa applicant. The Tribunal accepts they are ‘relatives’.

26. With respect to her orphan relative status, the visa applicant claims both her parents have passed away. The visa applicant provided a death certificate for her mother and the delegate accepted that she has passed away. The visa applicant claims her father Joseph Zaguy Ndule passed away a long time ago. The sponsor declared in her statement that she met the child’s father a long time ago and there is no death certificate relating to his death. The visa applicant provided a photograph of what she claims is her father’s gravesite with the date of 15 July 2007. The Tribunal does not consider such photograph on its own to be probative evidence of death because it is impossible to determine who the site relates to or that the person identified at the burial site was indeed the visa applicant’s father. The delegate noted that the visa applicant was able to provide a death certificate for her mother issued in 2006 and there appeared to be no reason why there was no death certificate for the father who died in 2007.

27. The primary decision record indicates that the Department received advice from the authorities of DR Congo that residents are able to obtain official documentation to support claimed deaths. In the absence of official death records relating to the father, the delegate was not satisfied that the father had passed away and that the visa applicant was an orphan relative.

28. The review applicant provided to the Tribunal the father’s death record. The Tribunal verified these documents through the overseas post. On 1 June 2018 the Tribunal received advice confirming that the child’s father was a patient at the specified hospital prior to his death and the record of death is contained in the hospital. The person who signed the death certificate confirmed the father’s death. The death certificate has been confirmed as a genuine document. On the basis of that record, the Tribunal accepts that the child’s father is deceased.

    Mr Derize Baramoto

29. The visa applicant claims to have been born in November 1998 and he provided with his application a birth certificate issued in March 2013. The delegate noted that on the presented photograph, the applicant appeared to be older than the claimed age and the delegate did not accept he was under the age of 18 at the time of the application.

30. The visa applicant claims to be a nephew of the sponsor and that his mother is the sister of the sponsor. The applicant’s birth certificate lists his mother as Clementine Baramoto. The primary decision record refers to high incidence of fraud in relation to birth records and relationship records, as well as evidence of parents’ death. The primary decision record indicates that the sponsor made her own visa application in 2009 and did not include Clementine Baramoto as her sister. The sponsor stated at the time that her father had 75 children and could not name all of them. The delegate noted that the sponsor made an FOI request prior to the present application being made, which raised concerns about the credibility of the information provided, noting that it appeared implausible that the sponsor would not refer to the visa applicant’s mother in her own application given that she claims to have the same parents as Clementine Baramoto.

31. In her UNHCR and Department interviews, it is recorded that the review applicant stated that her parents had four children, one of whom was deceased, and after the divorce her father had several other relationships. The sponsor stated that her two siblings were Bekpamade and Zelukata, with no mention being made of Clementine.

32. In response to the natural justice letter from the delegate, the visa applicant provided a statement regarding family composition as declared to the DR Congo authorities in 2012. The visa applicant states that the sponsor’s parents had 15 children.

33. This visa applicant and the review applicant had completed a DNA test to establish their relationship. The test confirms that the review applicant is the aunt of the visa applicant. The Tribunal accepts they are ‘relatives’.

34. With respect to his orphan relative status, the visa applicant claims both his parents have passed away. The visa applicant provided a death certificate for his mother and the delegate accepted that she has passed away. The visa applicant claims his father Joseph Zaguy Ndule passed away a long time ago. The sponsor declared in her statement that she met the child’s father a long time ago and there is no death certificate relating to his death. The visa applicant provided a photograph of what he claims is his father’s gravesite with the date of 15 July 2007. The Tribunal does not consider such photograph on its own to be probative evidence of death because it is impossible to determine who the site relates to or that the person identified at the burial site was indeed the visa applicant’s father. The delegate noted that the visa applicant was able to provide a death certificate for his mother issued in 2006 and there appeared to be no reason why there was no death certificate for the father who died in 2007.

35. The primary decision record indicates that the Department received advice from the authorities of DR Congo that residents are able to obtain official documentation to support claimed deaths. In the absence of official death records relating to the father, the delegate was not satisfied that the father had passed away and that the visa applicant was an orphan relative.

36. The review applicant provided to the Tribunal the father’s death record. The Tribunal verified these documents through the overseas post. On 1 June 2018 the Tribunal received advice confirming that the child’s father was a patient at the specified hospital prior to his death and the record of death is contained in the hospital. The person who signed the death certificate confirmed the father’s death. The death certificate has been confirmed as a genuine document. On the basis of that record, the Tribunal accepts that the child’s father is deceased.

    Mr Joseph Pida Baramoto

37. The visa applicant claims to have been born in September 1996 and he provided with his application a birth certificate issued in March 2013. The delegate noted that on the presented photograph, the applicant appeared to be older than the claimed age and the delegate did not accept he was under the age of 18 at the time of the application.

38. The visa applicant claims to be a nephew of the sponsor and that his mother is the sister of the sponsor. The applicant’s birth certificate lists his mother as Clementine Baramoto. The primary decision record refers to high incidence of fraud in relation to birth records and relationship records, as well as evidence of parents’ death. The primary decision record indicates that the sponsor made her own visa application in 2009 and did not include Clementine Baramoto as her sister. The sponsor stated at the time that her father had 75 children and could not name all of them. The delegate noted that the sponsor made an FOI request prior to the present application being made, which raised concerns about the credibility of the information provided, noting that it appeared implausible that the sponsor would not refer to the visa applicant’s mother in her own application given that she claims to have the same parents as Clementine Baramoto.

1. In her UNHCR and Department interviews, it is recorded that the review applicant stated that her parents had four children, one of whom was deceased, and after the divorce her father had several other relationships. The sponsor stated that her two siblings were Bekpamade and Zelukata, with no mention being made of Clementine.

2. In response to the natural justice letter from the delegate, the visa applicant provided a statement regarding family composition as declared to the DR Congo authorities in 2012. The visa applicant states that the sponsor’s parents had 15 children. The Tribunal is mindful that this contradicts entirely the sponsor’s own statements made in support of her visa application in 2009 when she claimed her parents had four children, one of whom was deceased. The Tribunal does not consider it plausible that the review applicant would be unaware of how many full siblings she had. There is a significant discrepancy between four and 15 siblings.

3. This visa applicant and the review applicant had completed a DNA test to establish their relationship. The test confirms that the review applicant is the aunt of the visa applicant. The Tribunal accepts they are ‘relatives’.

4. With respect to his orphan relative status, the visa applicant claims both his parents have passed away. The visa applicant provided a death certificate for his mother and the delegate accepted that she has passed away. The visa applicant claims his father Joseph Zaguy Ndule passed away a long time ago. The sponsor declared in her statement that she met the child’s father a long time ago and there is no death certificate relating to his death. The visa applicant provided a photograph of what he claims is his father’s gravesite with the date of 15 July 2007. The Tribunal does not consider such photograph on its own to be probative evidence of death because it is impossible to determine who the site relates to or that the person identified at the burial site was indeed the visa applicant’s father. The delegate noted that the visa applicant was able to provide a death certificate for his mother issued in 2006 and there appeared to be no reason why there was no death certificate for the father who died in 2007.

5. The primary decision record indicates that the Department received advice from the authorities of DR Congo that residents are able to obtain official documentation to support claimed deaths. In the absence of official death records relating to the father, the delegate was not satisfied that the father had passed away and that the visa applicant was an orphan relative.

6. The review applicant provided to the Tribunal the father’s death record. The Tribunal verified these documents through the overseas post. On 1 June 2018 the Tribunal received advice confirming that the child’s father was a patient at the specified hospital prior to his death and the record of death is contained in the hospital. The person who signed the death certificate confirmed the father’s death. The death certificate has been confirmed as a genuine document. On the basis of that record, the Tribunal accepts that the child’s father is deceased.

7. As noted above, four of the visa applicants, Joseph, Derize, Chris and Deborah, have been confirmed as nieces and nephews of the sponsor through DNA testing and the Tribunal has accepted that relationship between the visa applicants and the sponsor. The Tribunal finds they are ‘relatives’ of the sponsor. There is no evidence to indicate any of these children have spouses or de facto partners. If their claims concerning the dates of birth are accepted, as they appear to have been by the delegate, each of these children was under the age of 18 at the time the application was made. The Tribunal finds these children meet r.1.14(a).

8. The delegate accepted that their mother passed away and verification of the father’s death certificate confirms that their father is also deceased. The Tribunal finds that they cannot be cared for by either parent because each of them is dead. They meet r.1.14(b).

9. The sponsor indicated her willingness to care for the children and has provided evidence of having provided such care in the past, including financial support. There is no compelling reason to believe the grant of the visas would not be in the best interests of the applicant. The Tribunal finds that the four visa applicants meet r.1.14(c) and r.1.14. They are orphan relatives of the sponsor and meet cl.117.211 and cl.117.221.

   Miss Sialo Felayi

10. The visa applicant claims to have been born in August 2002 and she provided with her application a birth certificate issued in 2013. The delegate accepted that the visa applicant was under the age of 18 at the time the application was made.

11. The visa applicant claims to be a niece of the sponsor and that her mother is the sister of the sponsor. The applicant’s birth certificate lists her mother as Clementine Baramoto. The primary decision record refers to high incidence of fraud in relation to birth records and relationship records, as well as evidence of parents’ death. The primary decision record indicates that the sponsor made her own visa application in 2009 and did not include Clementine Baramoto as her sister. The sponsor stated at the time that her father had 75 children and could not name all of them. The delegate noted that the sponsor made an FOI request prior to the present application being made, which raised concerns about the credibility of the information provided, noting that it appeared implausible that the sponsor would not refer to the visa applicant’s mother in her own application given that she claims to have the same parents as Clementine Baramoto.

12. In her UNHCR and Department interviews, it is recorded that the review applicant stated that her parents had four children, one of whom was deceased, and after the divorce her father had several other relationships. The sponsor stated that her two siblings were Bekpamade and Zelukata, with no mention being made of Clementine.

13. In response to the natural justice letter from the delegate, the visa applicant provided a statement regarding family composition as declared to the DR Congo authorities in 2012. The visa applicant states that the sponsor’s parents had 15 children. The Tribunal is mindful that this contradicts entirely the sponsor’s own statements made in support of her visa application in 2009 when she claimed her parents had four children, one of whom was deceased.

14. This visa applicant and the review applicant had completed a DNA test to establish their relationship. The test confirms that the review applicant is the biological mother of the visa applicant. In her declaration sworn on 9 July 2018 the review applicant states that this child is a twin of Deborah Gelega, born in August 2002 and the DNA test does not indicate Deborah to be her biological child. The review applicant states she was imprisoned between 2000 and June 2001 and then escaped and had no contact with her family after her escape. The review applicant states that she was 50 years old at the time Felay Sialo was born and she could not have given birth to twins.

15. The Tribunal accepts that there is value in the review applicant’s claims, although the Tribunal is also mindful of the DNA test results. Ultimately it is not necessary for the Tribunal to determine whether this child is a biological child or a niece of the sponsor. Either relationship is recognised for the purpose of the visa applicant being a ‘relative’ and if this child is the biological child of the sponsor, she would meet the requirements for the grant of the Subclass 101 Child visa, being a minor child of the sponsor. However, the Tribunal also considers it possible that there was an error with the DNA results, given the review applicant’s explanation of her age and her whereabouts at the time of the child’s conception and the child’s relationship with her siblings. The Tribunal considers it more likely that this child is the niece and not the daughter of the sponsor.

16. With respect to her orphan relative status, the visa applicant claims both her parents have passed away. The visa applicant provided a death certificate for her mother and the delegate accepted that she has passed away. The visa applicant claims her father Joseph Zaguy Ndule passed away a long time ago. The sponsor declared in her statement that she met the child’s father a long time ago and there is no death certificate relating to his death. The visa applicant provided a photograph of what she claims is her father’s gravesite with the date of 15 July 2007. The Tribunal does not consider such photograph on its own to be probative evidence of death because it is impossible to determine who the site relates to or that the person identified at the burial site was indeed the visa applicant’s father. The delegate noted that the visa applicant was able to provide a death certificate for her mother issued in 2006 and there appeared to be no reason why there was no death certificate for the father who died in 2007.

17. The primary decision record indicates that the Department received advice from the authorities of DR Congo that residents are able to obtain official documentation to support claimed deaths. In the absence of official death records relating to the father, the delegate was not satisfied that the father had passed away and that the visa applicant was an orphan relative.

18. The Tribunal finds, having regard to the DNA test results, that this visa applicant is a relative of the sponsor. If she is a child of the sponsor, and she was under the age of 18 at the time the application was made, the applicant would meet the requirements for the grant of the Subclass 101 Child visa. In the Tribunal’s view, a preferable finding is that she is a niece of the sponsor and a relative. For the reasons stated above, the Tribunal is satisfied she is an orphan relative of the sponsor and meets cl.117.211 and cl.117.221.

    Miss Angele Yadekpe

19. The visa applicant claims to have been born in April 2006 and she provided with her application a birth certificate issued in 2013. The delegate accepted that the visa applicant was under the age of 18 at the time the application was made.

20. The visa applicant claims to be a niece of the sponsor and that her mother is the sister of the sponsor. The applicant’s birth certificate lists her mother as Clementine Baramoto. The primary decision record refers to high incidence of fraud in relation to birth records and relationship records, as well as evidence of parents’ death. The primary decision record indicates that the sponsor made her own visa application in 2009 and did not include Clementine Baramoto as her sister. The sponsor stated at the time that her father had 75 children and could not name all of them. The delegate noted that the sponsor made an FOI request prior to the present application being made, which raised concerns about the credibility of the information provided, noting that it appeared implausible that the sponsor would not refer to the visa applicant’s mother in her own application given that she claims to have the same parents as Clementine Baramoto.

21. In her UNHCR and Department interviews, it is recorded that the review applicant stated that her parents had four children, one of whom was deceased, and after the divorce her father had several other relationships. The sponsor stated that her two siblings were Bekpamade and Zelukata, with no mention being made of Clementine.

22. In response to the natural justice letter from the delegate, the visa applicant provided a statement regarding family composition as declared to the DR Congo authorities in 2012. The visa applicant states that the sponsor’s parents had 15 children. The Tribunal is mindful that this contradicts entirely the sponsor’s own statements made in support of her visa application in 2009 when she claimed her parents had four children, one of whom was deceased.

23. The DNA test completed by the review applicant and this visa applicant shows there is no relationship between them. The Tribunal sought the review applicant’s comments on that information pursuant to s.359A of the Act. In her declaration of 9 July 2018 the review applicant states that her sister passed away three months after she gave birth to this child and the only response she has to the DNA results is that there was a mix up at the hospital, which commonly happens in DR Congo. The applicant states that this child was raised as part of the family and is a sister to all her siblings.

24. In her subsequent submission to the Tribunal of 23 July 2018 the applicant provided a letter of support from the Federation of African Councils in Australia which also refers to common mistakes at the hospitals where children are swapped. The applicant states in her submission that nobody in the family knew that the child had no biological relation to the family and the child was raised as the biological child. The review applicant repeated the same evidence in oral evidence to the Tribunal. The Tribunal is prepared to give the review applicant the benefit of the doubt with respect to these claims. There is nothing to contradict her evidence that the child was raised within the family. There is no suggestion that the parties sought to intentionally mislead the Department or the Tribunal about the child’s status. The Tribunal accepts that they genuinely believed the child to be a biological child and related to the review applicant and her sister. However, having regard to the DNA test results, the Tribunal finds that such a relationship does not exist.

25. With respect to her orphan relative status, the visa applicant claims both her parents have passed away. The visa applicant provided a death certificate for her mother and the delegate accepted that she has passed away. The visa applicant claims her father Joseph Zaguy Ndule passed away a long time ago. The sponsor declared in her statement that she met the child’s father a long time ago and there is no death certificate relating to his death. The visa applicant provided a photograph of what she claims is her father’s gravesite with the date of 15 July 2007. The Tribunal does not consider such photograph on its own to be probative evidence of death because it is impossible to determine who the site relates to or that the person identified at the burial site was indeed the visa applicant’s father. The delegate noted that the visa applicant was able to provide a death certificate for her mother issued in 2006 and there appeared to be no reason why there was no death certificate for the father who died in 2007.

26. The primary decision record indicates that the Department received advice from the authorities of DR Congo that residents are able to obtain official documentation to support claimed deaths. In the absence of official death records relating to the father, the delegate was not satisfied that the father had passed away and that the visa applicant was an orphan relative.

27. The Tribunal finds, having regard to the DNA test results, that this visa applicant is not a biological child of the review applicant’s sister. There is no evidence of any other biological relationship between this child and the sponsor. There is no evidence of the child being adopted. The review applicant’s evidence to the Tribunal is that the child was always considered to be part of the family and was raised as a biological child. In such circumstances, there would be no steps in relation to adoption either formal or customary. The Tribunal is not satisfied that this visa applicant is a relative of the sponsor. As such, she cannot meet the requirements of r.1.14 and she is not an orphan relative for the purpose of cl.117.211 and cl.117.221.

28. As there is no evidence of adoption, the Tribunal is not satisfied this visa applicant meets the requirements for the Adoption visa. There is no evidence to indicate the visa applicant is the child of the sponsor and she does not meet the requirements of the Child visa.

    Conclusion

29. Given these findings, the appropriate course is to remit the visa applications made by the first five visa applicants to the Minister to consider the remaining criteria for the visa.

30. The criteria for the grant of a Subclass 117 visa are not met by the sixth named applicant and there have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

31. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first, second, third, fourth and fifth named visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

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

    Kira Raif
    Senior Member