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 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 Lizette
Is 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.
The visa applicant’s Form 47CH, Application for Migration to Australia by a Child, listed four brothers and sisters namely, Daniel Kalenda (Daniel), Gabriela Kalenda (Gabriela), Brian Kalenda (Brian) and Naomi Kalenda. Applications were also filed by Daniel, Gabriela and Brian. Naomi Kalenda is not seeking to migrate to Australia.
The application claimed that all four children who were applying to migrate were siblings by birth and that Ms Demzi Kalenda was their mother and Mr Tshiombe Kalenda was their father.
The parties were unable to provide the birth certificates of the visa applicant, her parents or the review applicant. Nor were they able to provide the parents’ death certificates.
In about late 2020/early 2021, DNA testing was carried out on the review applicant, the visa applicant and the three siblings also applying. The results of that test indicated that there was strong evidence that the review applicant was the uncle of the visa applicant and Daniel. However, the findings indicated that it was less likely that the review applicant was the uncle of Brian or Gabriela and it was also less likely that Brian and Gabriela were siblings of Lagrace and Daniel. Subsequent to these DNA test results, the applications of Brian and Gabriela were withdrawn.
Having regard to the results of the DNA testing, the Tribunal finds that the visa applicant is a relative of an Australian citizen, being a niece of the review applicant. The visa applicant therefore satisfies reg 1.14(a)(iii) of the regulations.
However, the Tribunal is unable to make a finding as to whether the review applicant is related to the mother or father of the visa applicant. The evidence before the Tribunal concerning the review applicant’s relationship to the visa applicant’s parents is conflicting.
The Tribunal notes the following documentary evidence provided to the department and the Tribunal:
(i)in his Statutory Declaration of 9 December 2020 the review applicant states:
a.    that he did not have a birth certificate either for himself or for his sister, the visa applicant’s mother, Demzi Kalenda;
b.    that any photos or family records which would evidence his relationship with Demzi have been lost or destroyed since he left the DRC;
c.     that as his parents had been deceased for a long time, he was unable to contact them for any evidence of his relationship to Demzi;
(ii)the Malawi Court Order, dated 2 June 2021 purporting to grant custody of “the four children” to the review applicant, specifically refers to the review applicant as the “applicant” before the court. It then goes on to state that:
“the mother to the children was a sister to the applicant herein.”
However, the Tribunal received oral evidence from the review applicant, inconsistent with the above evidence. In response to the question as to whether he has siblings, his answer was that he had only one sibling, a brother – namely the father of the visa applicant, who died in 2016, in the subject motor vehicle accident.
The Tribunal therefore has before it, conflicting documentary and oral evidence of the review applicant, as to whether he is biologically related to the visa applicant’s mother or father.
In any event, the Tribunal is prepared to accept the review applicant is biologically related to either the mother or father of the visa applicant and that there may have been a misdescription or misunderstanding in the documents referred to above.
No parental care – reg 1.14(b)
Regulation 1.14(b) requires that;
“the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts”.
Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.
The evidence presented in the application and subsequently, is that the visa applicant’s parents died in a motor vehicle accident, as passengers in a bus, in DRC in late 2016/early 2017.
On 11 November 2020 the visa applicant was requested to provide further information by the Department, “in order to substantiate your claims of being orphaned and to prove the line of relationship with your sponsor”.
This correspondence included a request for the original birth certificate of the visa applicant and the original death certificates for both of her biological parents and proof of the sponsor’s relationship with one of the applicant’s parents in the form of a birth certificate. The request also included proof of the visa applicant’s current guardian in Malawi and proof that the review applicant has the right to remove the visa applicant from Malawi.
On 10 December 2020, the Department was informed that the visa applicant was unable to provide her birth certificate as her age prevented her from making official enquiry to the Democratic Republic of Congo (DRC) to obtain her birth certificate and that it was not safe either for herself or her guardian to travel to the DRC to obtain the certificate.
The visa applicant also informed the Department that she was unable to provide evidence of her parent’s death certificates.
Circumstances of the parents’ death
The Tribunal has no official documentary evidence confirming the birth of the visa applicant, her parents, or the review applicant. Nor does the Tribunal have any official documentary evidence confirming the death of the visa applicant’s parents.
The evidence before the Tribunal that the visa applicant’s parents both died in a motor vehicle accident has, as its source, the testimony of Ms Lizette, who claims to be a close and long-time friend of the visa applicant’s parents. Her statutory declaration of 5 March 2021 states that:
“5.On or around December 2016 I became aware that a motor vehicle accident had occurred near Lubumbashi, Katanga in the …DRC.
6.I was told of this accident by my husband. I am now aware that 22 people who were on a bus were killed in that motor vehicle accident.
7.Word reached me soon after the accident that Demzi and Tshiombe were on the bus, and killed.”
In her oral evidence, Ms Lizette stated that after learning of the death of the visa applicant’s parents, she searched for the review applicant online and found him through a friend, informing him of what had occurred.
In his statutory declaration, the review applicant provided details of his knowledge of the circumstances relating to the death of the parents. He states that the parents were travelling on a bus when the accident occurred and that approximately 21 people were killed in the accident. He alleges that officials discarded the bodies of the victims into the bush for their families to collect. He states that a family friend collected the bodies of the visa applicant’s parents and buried them. The review applicant gave evidence that he was told of the motor vehicle accident and the death of the visa applicant’s parents by his former neighbour, Ms Lizette.
Care of the children
Various evidence has been provided to the department and the Tribunal concerning the circumstances surrounding the care of the children following the purported death of their parents in the motor vehicle accident.
In relation to the care of the children from the time of their parents death, the review applicant’s statutory declaration states the following:
(i)the children were cared for by their grandmother following the death of their parents;
(ii)their grandmother struggled to care for the children and died after caring for them for approximately 2 to 3 months;
(iii)after the death of their grandmother, they were temporarily cared for in a community that looked after children;
(iv)after their grandmother died, the review applicant contacted a Congolese friend who was living in Zambia at the time;
(v)this friend, with the help of the Red Cross, travelled to DRC and took the children to live with him in a refugee camp in Zambia and then later travelled with them to a refugee camp in Malawi;
(vi)this friend died in or around 2019; and
(vii)After the death of his friend, another person commenced caring for the children, Mr Jean Bosco, the brother of the review applicant’s wife’s first husband.
However at the Hearing, the review applicant gave evidence that was inconsistent with his statutory declaration.
His oral evidence was that after the accident, Ms Lizette and a close friend looked after the children for about two years, before taking them to Malawi. The Tribunal drew his attention to the fact that this contradicted his statutory declaration, where there is no mention of Ms Lizette and where he stated that the grandmother of the children looked after them following the parents death.
In response to this, the review applicant said that culturally, the term grandmother means any older person and then stated that this was Ms Lizette. The Tribunal notes however that in the statutory declaration he stated that the grandmother “struggled” to care for them and died after 2-3 months, whilst Ms Lizette is alive.
At the request of his representative, the subject paragraphs of his statutory declaration were read to him. He confirmed that the paragraphs in question were an honest reflection of his instructions but that “grandmother” culturally refers any old person, in this instance Ms Lizette.
The Tribunal, however, remains concerned as to why the review applicant would not simply refer to Ms Lizette by name rather than by the cultural reference of “grandmother”. She purports to be a close friend and former neighbour, and a person who allegedly cared for his young relatives in very difficult circumstances.
The Tribunal is concerned that the review applicant not only referred to a grandmother caring for the children, but also to the fact that this person struggled in carrying out that care and died approximately 2 to 3 months later. The reference to a person struggling to care for the children and dying 2 to 3 months later are very specific references by the review applicant. He personally confirmed that they were an honest reflection of his instructions and yet the person he claims was that grandmother, Ms Lizette, is still alive and gave evidence.
There is further concern in relation to the reference in the statutory declaration to the “community that looks after children”. The review applicant provided no evidence as to the name or location of such community or to any individuals who were involved in providing that care.
There are further inconsistencies in the evidence concerning the care of the children, when comparing the evidence of the review applicant with the oral evidence of Ms Lizette at the Hearing.
Her evidence was that she commenced caring for the children within one month of the parent’s death. She stated that she found the children to be “on their own”. She took care of them for almost one year and makes no reference to any other person assisting her, nor any person dying approximately 2 to 3 months later, nor there being a community who cared for the children. After about one year, she claims she and the children travelled through Zambia and then to Malawi.
To summarize, the conflicting evidence relating to the care of the children following the alleged death of the parents is as follows:
a.    In his statutory declaration the review applicant stated:
(i)that the children were cared for by their grandmother immediately after the death of the parents;
(ii)that the grandmother struggled to care for them and died within 2 to 3 months; and
(iii)that they were then cared for in a community that looks after children;
(iv)that a Congolese friend from Zambia came and took the children with him to a refugee camp in Zambia and eventually to Malawi; and
(v)this friend died in about 2019 and Mr Jean Bosco took over the care of the children;
b.    In his oral evidence the review applicant:
(i)stated that Ms Lizette and another friend cared for the children for about two years before taking them to Malawi;
c.     In her oral evidence Ms Lizette:
(i)stated that she commenced caring for the children within one month of the death of the parents that she found them “on their own” at that time; and
(ii)further stated that she cared for them for about two years before taking them to Malawi.
In post-hearing submissions, the representative submitted that consideration of the evidence concerning the visa applicant’s whereabouts and under whose care she might have been following the death of her biological parents, would be an irrelevant consideration in the Tribunal’s decision. The Tribunal does not accept this submission. As outlined herein, there are significant conflicts and inconsistencies between various versions of the whereabouts and care of the children by the review applicant and as between the review applicant and Ms Lizette. To the extent that such conflicts and inconsistencies cause the Tribunal to be concerned as to the credibility of the witnesses and the veracity of their evidence, the matters remain a relevant consideration.
Dates of birth of the children
The application by the visa applicant refers to 3 other children, noted above to be Daniel, Brian and Gabriela. The application claimed that these three other children were the biological siblings of the visa applicant and hence they all claim to be biological children of the parents allegedly killed in the motor vehicle accident.
When asked as to how he learned the dates of birth of the visa applicant and the other 3 children, the review applicant stated that he spoke to Ms Lizette, who:
“..asked around and got the dates of birth of the children”.
He also said:
“..everyone knows each other in their neighbourhood”.
The Tribunal raised with the review applicant that it might find it hard to accept that Ms Lizette knew the dates of birth of four children that she was not related to and that neighbours of the family also knew such information.

The Tribunal finds it highly implausible and unlikely that Ms Lizette and neighbours, people who are not immediate family members, would know the birth dates for the children. This is especially so in circumstances where two of the children were found not to be biological children of the parents. If this evidence were to be accepted, Ms Lizette and neighbours were aware of the birthdates of children who were not even children of the parents.
In any event, when Ms Lizette was asked whether she knew of the children’s dates of birth, she stated that she did not know anything about the dates of birth and only that she believed Daniel was the eldest of the children. She stated that she did not provide the review applicant with the dates of birth of the children.
Therefore, the Tribunal finds that the review applicant’s evidence that he asked Ms Lizette and she had certain information herself and also asked around and got information from other people in the town, to be patently false. In relation to these matters, the Tribunal finds the review applicant not to be an truthful or credible witness.
The review applicant’s representative referred the Tribunal to the documents received from the UNHRC setting out the dates of birth of the children. The Tribunal informed the representative of its understanding that the UNHRC document was as reliable as its source i.e. the person who provided it. The review applicant’s evidence was clear - that he was unaware of the dates of birth and Ms Lizette was clear in her evidence - that she had no knowledge of the dates of birth and provided no such information to the review applicant – and she is the person who it is now claimed took the children to the camp in Malawi.
The DNA testing results
As noted above, the application stated that the visa applicant had three other biological siblings and that her parents, Tshiombe and Demzi Kalenda, were the biological parents of each of those children. The DNA testing indicated that Brian and Gabriela were not related to the review applicant, the visa applicant or her brother, Daniel.
The evidence is therefore, that two children whom the visa applicant claimed to be her biological siblings, were not related to her and were not the children of her parents.
The Tribunal asked the review applicant why he had referred to Brian and Gabriela as siblings of the visa applicant and lodged applications on their behalf. He responded that he believes that the children were children of his brother, if not of his sister-in-law.
There is the further consideration that Ms Lizette claims to have been a close and long-time friend of the visa applicant’s parents and lived in the same locality, yet apparently was unaware that two of the children were not biological children of her close friends. This is especially concerning when Ms Lizette states that she had known the parents since 2014 and yet Gabriela, who was not a biological child of her close friends, was born in 2015.
The Tribunal finds that the conflicting evidence between the review applicant’s written statement and his oral evidence to be very concerning. The Tribunal finds the conflicting evidence between the review applicant and Ms Lizette also very concerning. These discrepancies cast serious doubt on the veracity of the evidence before the Tribunal.
The Tribunal is further concerned by the following consideration: according to the evidence of the review applicant, the application is based upon the fact that all of the evidence concerning the alleged death of the parents (including date, location and method) and the subsequent care and relocation of the children, was known initially by Ms Lizette, who informed the review applicant. Why then, are there such inconsistencies in their versions? If he was told the information by her, how is it that there are so many discrepancies between his own documentary and oral evidence and as between the evidence of each of them?
The Malawi court order
The Tribunal makes reference to the Malawi court order provided by the review applicant, dated 2 June 2021. As noted above, the order purports to grant custody of the visa applicant and the three other children to the review applicant.
The Tribunal notes that the order states that the four children with the children of Demzi Kalenda, and that the review applicant was their “blood uncle”. However, the DNA evidence confirms that the order is factually incorrect, in that Demzi Kalenda is not the mother of two of the children and as a result the review applicant is not their blood uncle.
In relation to the motor vehicle accident, it merely states “Their father and mother died in a road accident right in DRC”.
The order identifies a witness, Romeo Bijangala, who it claims is the leader of the “Congo Community in the Camp”. It further states that the witness claims to know the children, the applicant and the respondent (Jean Bosco). The witness has further testified that the review applicant is “the blood uncle to all the four children“. Again, evidence which we know to be patently wrong.
The order appears merely to reflect what the court was told by the review applicant and the witness, namely that the parents of the children are deceased, that the children are all biologically related and the biological children of Demzi Kalenda.
The Tribunal further notes, that the order of the Malawi court is dated 2 June 2021 and the DNA test results were available to the review applicant on 11 May 2021. This evidence was presumably not put before the Malawi court. The effect of the DNA evidence is to render the order factually incorrect on a number of bases.
The Tribunal cannot be satisfied that the conclusions drawn in the order document were arrived at as a result of an objective consideration and investigation of objective, corroborating evidence into the matters it purports to deal with. The court appears to been unaware of the DNA results which were available approximately three weeks prior to the date of the order. Taking into account all of the matters raised herein regarding the document, the Tribunal gives no weight to the Malawi order document.
The Tribunal finds that the evidence given by the review applicant and Ms Lizette, both documentary and oral, in relation to the alleged death of the parents and ongoing care of the children was contrived, implausible and untruthful. The Tribunal formed the view that the review applicant and Ms Lizette were not truthful or credible witnesses.
Having carefully considered all of the evidence, the Tribunal cannot be satisfied as to the death of the visa applicant’s parents. As a result, the Tribunal cannot be satisfied that the visa applicant’s parents are dead and hence the visa applicant fails to satisfy Reg 1.14(b).
At the Hearing, the representative drew the Tribunal’s attention, amongst other matters, to three issues to be considered namely: the identity of the children referring to name, gender and date of birth; the proven relationship between the review applicant and the visa applicant (as referred to in the DNA evidence); and the death of the parents or their whereabouts being unknown.
The representative’s submission was that to date, and in line with his instructions, the application has been concerned with the death of the parents, but that the visa may also be granted if the Tribunal was to accept their whereabouts were unknown.
The Tribunal does not accept this submission. There has never been reference made to the parents being of “unknown whereabouts”.
The whereabouts of the parents are not unknown, according to the entirety of the review applicant’s case. The parents are deceased as a result of motor vehicle accident and were buried by a family friend nearby to where the accident occurred. The documentary and oral evidence presented to the Department and the Tribunal is entirely predicated on this set of facts.
In submissions received post-hearing, the representative submitted that should the Tribunal not be satisfied that the parents of the visa applicant are deceased ‘based upon witness testimonies alone’, that consideration should be made ‘that they have not been seen or heard of for the last 7 years” and that in the circumstances this would allow for the common law presumption of death to be accepted. The Tribunal does not accept this submission. The Tribunal has formed the view that there are significant discrepancies and inconsistencies between the various pieces of evidence provided by the witnesses as outlined in this decision record. In view of this, the Tribunal cannot be satisfied that the visa applicant’s parents have not been seen or heard of in the last seven years.
The Tribunal finds that there are significant and serious conflicts and inconsistencies in the evidence relating to the care of the children in DRC, the accompaniment of the children to Malawi, knowledge relating to the dates of birth of the children and the assertion that two of the children were biological siblings of the visa applicant, when the DNA testing confirmed that this was not the case.
The Tribunal finds that there are significant and serious conflicts and inconsistencies between the evidence given by the review applicant in his statutory declaration as compared with his oral evidence and as between the evidence of the review applicant and that of Ms Lizette.
The Tribunal had the benefit of receiving the evidence of the review applicant personally at the Hearing and of Ms Lizette by telephone. The Tribunal finds that in relation to the concerns raised above, these conflicts and inconsistencies seriously call into question the credibility of both witnesses. The Tribunal finds the evidence of the review applicant and Ms Lizette in relation to these matters of concern, to be contrived, implausible and untruthful. The Tribunal forms the view that neither of them are truthful nor credible witnesses.
Having carefully considered all of the evidence and submissions, the Tribunal does not accept the claims in relation to the Subclass 117 visa. The Tribunal finds that it cannot be satisfied that the parents of the visa applicant are deceased based on the evidence provided. As a result, the parties have not sufficiently demonstrated that the visa applicant is an orphan relative. She therefore does not meet reg 1.14(b) and hence fails to satisfy cl 117.211 of Schedule 2 to the regulations.
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Edward Howard
Member

ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.14Orphan relative
An 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.