Kalenda (Migration) - [2024] AATA 2473

Kalenda (Migration) [2024] AATA 2473 (3 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Miji Kalenda
VISA APPLICANT:  Miss Lagrace Kalenda
REPRESENTATIVE:  Dr Nathan Stephen Willis (MARN: 1467692)
CASE NUMBER:  2113549
HOME AFFAIRS REFERENCE(S):          F2019/022373
MEMBER:Edward Howard
DATE:3 May 2024
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 03 May 2024 at 4:05pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – results of the DNA testing – visa applicant is a relative of an Australian citizen – evidence concerning the review applicant’s relationship to the visa applicant’s parents is conflicting – Tribunal cannot be satisfied that the visa applicant’s parents are dead – parties have not sufficiently demonstrated that the visa applicant is an orphan relative – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.14, Schedule 2, cls 117.111, 117.211,117.221

CASES
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 August 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 September 2019. At that time, 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.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa as the visa applicant did not meet the requirements of reg 1.14(a)(iii) and reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2.
The review applicant, Mr Miji Kalenda is an Australian citizen. The visa applicant is a Congolese National child who currently resides in Malawi.
The review applicant appeared before the Tribunal on 24 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Aisha Lizette (Ms Lizette). The Tribunal Hearing was conducted with the assistance of an interpreter in the Swahili and English languages.
The review applicant was represented in relation to the review. The representative attended the Tribunal Hearing.
For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.
BACKGROUND
The Tribunal notes that the visa applicant’s brother, Master Daniel Kalenda, has a related matter for review, being his application for a Subclass 117 visa and subsequent refusal by the Department. The evidence and submissions provided in respect of the Subclass 117 visa requirements are uniform as between both applications. In the circumstances, a joint Hearing took place in respect of the applications of both the visa applicant and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kalenda (Migration)

Details

AGLC: Kalenda (Migration) [2024] AATA 2473
Case: [2024] AATA 2473
Decision Date: 3 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application for a Child (Migrant) (Class AH) visa, specifically the subclass 117 (Orphan Relative) visa, made by the visa applicant. The dispute arose from the refusal of this visa by the Department, which the review applicant, an Australian citizen and alleged uncle of the visa applicant, sought to have reviewed. The Tribunal noted that a related matter concerning the visa applicant's brother, who also applied for a subclass 117 visa, was heard concurrently due to uniform evidence and submissions.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for an orphan relative as defined by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the visa applicant was a relative of an Australian citizen, and crucially, if both of her parents were deceased, permanently incapacitated, or of unknown whereabouts, such that she could not be cared for by them. The Tribunal also considered whether there was any compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal's reasoning focused on the definition of an "orphan relative" under regulation 1.14 of the Migration Regulations. This definition requires that both parents of the applicant be deceased, permanently incapacitated, or of unknown whereabouts. While the visa applicant claimed to be the niece of the review applicant, an Australian citizen, the evidence presented did not sufficiently satisfy the Tribunal that both of the visa applicant's parents were deceased. Conflicting evidence regarding the visa applicant's relationship to her alleged parents led the Tribunal to conclude that it could not be satisfied of this essential criterion.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant the subclass 117 visa, as the applicant had not sufficiently demonstrated that she met the requirements of being an orphan relative.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.BACKGROUND The Tribunal notes that the visa applicant’s brother, Master Daniel Kalenda, has a related matter for review, being his application for a Subclass 117 visa and subsequent refusal by the Department. The evidence and submissions provided in respect of the Subclass 117 visa requirements are uniform as between both applications. In the circumstances, a joint Hearing took place in respect of the applications of both the visa applicant and her brother. Daniel Kalenda’s matter will be the subject of a separate decision record. CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicant applied for an orphan relative (subclass 117) visa on 18 September 2019 on the basis that she is the niece of the review applicant. The evidence provided included, but was not limited to, the following:(a) Form 47CH Application for migration to Australia by child(b) Form 40CH Sponsorship for a child to migrate to Australia(c) Form 956, Advice by registered migration agent/exempt person providing immigration assistance(d) Form 1229 Consent to grant an Australian visa to a child under the age of 18 years(e) Sponsor’s Document for travel to Australia issued in 2015(f) Sponsor’s wife’s document for travel to Australia issued in 2009(g) Sponsor’s wife’s Australian citizenship certificate(h) Sponsor’s wife’s Australian passport and drivers licence(i) UNCHR registration card referencing applicant and alleged siblings(j) Sponsor’s tax returns(k) money transfers to the visa applicant from the sponsor(l) sponsor’s AFP Certificate and sponsor’s wife’s AFP Certificate(m) Statutory Declaration of the review applicant(n) Statutory Declaration from Aisha LizetteIs the visa applicant an orphan relative of an Australian relative? 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 applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. 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. 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): reg 1.03. In the present case, it is claimed the review applicant is the relevant Australian relative. The delegate refused to grant the visa as the visa applicant did not meet the requirements of reg 1.14(a)(iii) and reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2. Relative – reg 1.14(a)(iii)

Evidence

Evidence Before The Court

The Tribunal notes that the visa applicant’s brother, Master Daniel Kalenda, has a related matter for review, being his application for a Subclass 117 visa and subsequent refusal by the Department. The evidence and submissions provided in respect of the Subclass 117 visa requirements are uniform as between both applications. In the circumstances, a joint Hearing took place in respect of the applications of both the visa applicant and her brother. Daniel Kalenda’s matter will be the subject of a separate decision record. CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicant applied for an orphan relative (subclass 117) visa on 18 September 2019 on the basis that she is the niece of the review applicant. The evidence provided included, but was not limited to, the following:(a) Form 47CH Application for migration to Australia by child(b) Form 40CH Sponsorship for a child to migrate to Australia(c) Form 956, Advice by registered migration agent/exempt person providing immigration assistance(d) Form 1229 Consent to grant an Australian visa to a child under the age of 18 years(e) Sponsor’s Document for travel to Australia issued in 2015(f) Sponsor’s wife’s document for travel to Australia issued in 2009(g) Sponsor’s wife’s Australian citizenship certificate(h) Sponsor’s wife’s Australian passport and drivers licence(i) UNCHR registration card referencing applicant and alleged siblings(j) Sponsor’s tax returns(k) money transfers to the visa applicant from the sponsor(l) sponsor’s AFP Certificate and sponsor’s wife’s AFP Certificate(m) Statutory Declaration of the review applicant(n) Statutory Declaration from Aisha LizetteIs the visa applicant an orphan relative of an Australian relative? 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 applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. 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. 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): reg 1.03. In the present case, it is claimed the review applicant is the relevant Australian relative. The delegate refused to grant the visa as the visa applicant did not meet the requirements of reg 1.14(a)(iii) and reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2. Relative – reg 1.14(a)(iii) Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Edward HowardMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:(a)the applicant:(i)has not turned 18; and(ii)does not have a spouse or de facto partner; and(iii)is a relative of that other person; and(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.