Kalizeti (Migration) - [2020] AATA 1118

Kalizeti (Migration) [2020] AATA 1118 (25 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Justine Furaha Kalizeti
VISA APPLICANT:  Miss Cristele Kalizeti
CASE NUMBER:  1831999
DIBP REFERENCE(S):  OSF2016046715
MEMBER:Grant Chapman
DATE:25 March 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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.

Statement made on 25 March 2020 at 1:06pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative – no parental care – father murdered – mother of ‘unknown whereabouts’ – attempts to locate applicant’s biological mother – extensive searches conducted in 2017 and 2018 – searches undertaken prior to 2017 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cls 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978
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 Immigration on 5 October 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Orphan Relative (Subclass 117) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Cristele Kalizeti, applied for the visa on 15 March 2016. 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 (the Regulations). Relevantly to this case, they include cl.117.211(a) which requires that, at the time of visa application, the applicant is an orphan relative of an Australian relative of the applicant, as defined in Regulation 1.14 which includes Regulation 1.14 (b), that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.
The delegate refused to grant the visa because the applicant did not meet cl.117.211(a) of Schedule 2 to the Regulations because on the information provided, they were not satisfied that attempts were made to find the applicant's mother until February 2017, eleven months after the visa application was lodged. Therefore, they opined that the applicant's mother could not be considered to be of "unknown whereabouts" because they concluded that no attempts were made to locate the mother's whereabouts until 2017.
The review applicant appeared before the Tribunal on 19 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, by telephone connection to Uganda and from Bish Zahinda, who attended the Hearing and is the husband of the review applicant's half-sister.…

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 Kalizeti (Migration)

Details

AGLC: Kalizeti (Migration) [2020] AATA 1118
Case: [2020] AATA 1118
Decision Date: 25 March 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision made under the Migration Act 1958 (Cth) concerning a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan relative). The applicant sought to establish that the child's mother was of unknown whereabouts, a criterion for the visa. The court was required to determine whether the evidence presented sufficiently demonstrated that extensive searches had been conducted to locate the applicant's biological mother.

The legal issues before the court revolved around the adequacy of the evidence of searches for the applicant's mother. Specifically, the court had to consider statutory declarations provided by the applicant's agent, which included statements from three residents of Bunia. These declarations detailed searches undertaken between 2007 and 2019, including inquiries in refugee camps, cities, churches, markets, and through radio broadcasts. The court was tasked with assessing whether these documented efforts met the requirements for establishing that the mother's whereabouts remained unknown.

The court accepted the veracity of the statutory declarations provided, which described extensive and varied searches for the applicant's mother, Esperence Nzale, conducted by multiple individuals over a significant period. These searches included inquiries in refugee camps in Uganda between 2007 and 2014, and within the Democratic Republic of Congo between 2007 and 2019, encompassing various markets, displaced persons camps, and commercial and mining centres. Radio broadcasts were also undertaken to locate her. The court found that these efforts, initiated and paid for by the applicant's sister-in-law, demonstrated a genuine and thorough attempt to find Esperence Nzale, and that despite these endeavours, her whereabouts remained unknown. The decision under review was remitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In response to the Tribunal's oral request at the Hearing for documented evidence regarding earlier searches for the applicant's mother, on 9 January 2020, the applicant/review applicant's agent provided a Statutory Declaration from the review applicant, together with original French and English language Statutory Declarations from three current residents of Bunia, describing searches for the mother which they had undertaken between 2007 and 2019. The Tribunal accepts the veracity of these statements, which are reproduced below as follows (signatures omitted):Statutory DeclarationI/ We,Justine Furaha Kalizeti[full name]of [specific address] SA 5108[address]do solemnly and sincerely declare thatWhen I was refugee in Uganda I did the search for my sister in-law, Esperence Nzale, mother of my niece Cristele Kalizeti, in the refugee camps where people who fled the war in Congo were concentrated. I visited and inquired in the following refugee camps several times between 2007 and 2014: Kyangwali camp, Nakivale camp, Kyaka I and Kyaka II camps.I also inquired in Kampala city, in churches run by Congolese refugees. In the meantime people whom I had paid to help for the search while I was still in Congo kept searching. From time to time I contacted Congo to find out if there was any luck, because we had agreed that anyone who could find Esperence I should pay them or give them a gift depending on the case. While in Australia, since my arrival in July 2014 until today I kept contacting Africa to find if someone has found Esperence. Unfortunately nobody has been able to find her and her whereabouts remain unknown.Statutory DeclarationConcerning: Search for Esperance NzaleI, Brigitte Dz'venga Njangusi, a Congolese national, resident of the city of Bunia at address [specific address], Ituri Province, Democratic Republic of Congo (DRC); practising as a cook at Samaritan's Purse in Bunia.Declare the following.I participated in the search for Miss Esperance Nzale, lost during the war in Bunia. The search was initiated and paid for by Justine Kalizeti. My search took place during the years 2007, 2008, 2015, 2018 mainly in the major local markets and periodic markets of Gonyeri, Kpandroma, Ariwara, Boga, Makpo, Gina, Nyankunde etc., as well as in the internally displaced camp of the MONUSCO (United Nations Stabilisation Mission in the Democratic Republic of Congo) in Bunia. Despite my best efforts I have not found Esperance and none of the people I contacted confirmed having seen Esperance after the war.And I make this statement solemnly with frankness and honesty, knowing that it has the same strength and effect as if it was made under oath.Statement made in Bunia, in the province of lturi, this .......... day of January2020, by: Brigitte Dz'venga NjangusiStatutory DeclarationConcerning: Search for Esperance NzaleI, Gerry Ndjango Dhembu, Congolese citizen, resident of the city of Bunia, at address [specific address], Ituri Province, Democratic Republic of Congo (DRC); practising as a driver.Declare the following:I participated in a series of search for Miss Esperance Nzale, mother of Cristele Kalizeti lost during the war in Bunia. The search was initiated and paid for by Justine Kalizeti. As a driver I had the ease of searching in various environments and this took place several times between 2007 and 2019. The areas where I conducted my search included: Mahagi territory, Djugu territory, Aru territory, commercial centres of Ariwara and Tchomia, mining Centres of Mongbalu and Duruba, markets of Gonyeri, Nizi and Kpandroma, border market of Paidha/Uganda, Ndrele Centre, trading centres along the roads of Bunia-Kisangani namely Irumu, Komanda, Mambasa, Epulu, Nyanya and Bafwasende. Despite my efforts and the diversity of my search areas, I have not found Esperance.And I make this statement solemnly with frankness and honesty, knowing that it has the same strength and effect as if it was made under oath.Statement made in Bunia, in the province of Ituri, this ............day of January 2020, by: Gerry Ndjango Dhembu.Statutory DeclarationConcerning: Search for Esperance NzaleI, Pierrot Kabagambe Wabusoke, Congolese national, resident of the city of Bunia, at address [specific address], Ituri Province in the Democratic Republic of Congo (DRC) and practising as radio announcer at RADIO CANDIP/ISP Bunia.Declare the following.I had repeatedly broadcasted a research statement from Miss Esperance Nzale, mother of Cristele Kalizeti lost during the war in Bunia. The copy of the search release was handed to me by Justine Kalizeti. I broadcasted the search statement several times in between 2007 and 2019. The statement asked Esperance to contact CANDIP/ISP Radio physically or by interposed persons to confirm that she was still alive and where she was living. This press release also asked anyone who found Esperance to contact CANDIP Radio urgently and the radio would send the news to Justine who in return would offer a thank you gift. Despite the multitude of broadcasts of the search release and the fact that the airwaves of Radio CANDIP go beyond the Congolese borders, Miss Esperance has not been found.And I make this statement solemnly with frankness and honesty, knowing that it has the same strength and effect as if it was,made under oath.Statement made in Bunia, in the province of Ituri, this 2020 1X7 day of January, by: Pierrot KabagambeWabusoke.Before me, Roger Bengisiabo KabulaboRegistrar at the Children's Court of Bunla, JP.