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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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. The Tribunal Hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent, Ms Arnela Tolic, from Oz Migration Services, Parramatta, New South Wales. The representative attended the Tribunal Hearing.

7. Both prior to and after the Tribunal Hearing, the review applicant provided to the Tribunal documents which had not been provided to the Department of Immigration and Border Protection.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The key issue in the present case is whether the applicant's biological mother was of "unknown whereabouts" at the time of visa application and at the time of this Decision and therefore, whether the applicant meets the requirements for being accepted as an orphan relative, as defined in Regulation 1.14(b).

2. In determining the applicant's claims, the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of sensitivity to the circumstances and difficulties applicants may face before the Tribunal, related to their particular situation.

3. The applicant and review applicant rely on written submissions and supporting evidence provided to the Tribunal and previously to the Department, together with oral evidence which the review applicant, applicant and witness gave to the Tribunal Hearing.

Is the visa applicant an orphan relative of an Australian relative?

1. 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.

2. ‘Orphan relative’ is defined in r.1.14 of the Regulations, as follows: "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 the visa would not be in the best interests of the applicant.” 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): r.1.03. 

3. In the present case, the review applicant, Justine Kalizeti, is the relevant Australian relative.

4. For the reasons below, I am satisfied that the visa applicant was an orphan relative of an Australian relative at the time of application, or was not an orphan relative only because the applicant has been adopted by an Australian relative. Furthermore, I am satisfied that the visa applicant is an orphan relative of an Australian relative at the time of this Decision, or is not an orphan relative only because the applicant has been adopted by an Australian relative.

5. Therefore, the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of Decision.

6. On 18 January 2019, the agent for the applicant and review applicant provided to the Tribunal a detailed written submission providing information relevant to the Tribunal's consideration of whether the applicant met the various requirements of the legislation, which submission is reproduced in its entirety as follows and on the following pages:

   Review Applicant: Miss Justine Furaha Kalizeti

   Visa Applicant: Miss Cristele Kalizeti

   Case number: Case number: 1831999

   APPLICATION FOR REVIEW

   1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 March 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (‘the Act’).

   The delegate was not satisfied that the first named visa applicant is an orphan relative of the review applicant because the Australian Red Cross letter dated 23.2.2017 stated that “please note that a failure to locate a sought person through the Red Cross Red Crescent Movement cannot be considered conclusive and should not be use in any way by the enquirer or a third party as evidence of loss of contact or to attribute the status of ‘missing’ to a person in legal proceedings or for immigration purposes’ and there is no evidence of attempts to locate the visa applicants mother whereabouts prior to 23.2.2017. Accordingly, the delegate refused the visa application determining the named visa applicant did not satisfy regulation 1.14(b) which forms part of ‘orphan relative’ as well as of cl.117.211 which require her to be an orphan relative at the time of the visa application and the time of decision.

   Background

   The visa applicant applied for the visa on 15 March 2016. The named visa applicant [Cristele Kalizeti] claims to be the niece of the sponsor for the visa, [the review applicant]. The visa sponsor is a permanent resident of Congolese heritage and she is the review applicant in this matter.

   Legislation

   Clause 117.211 of Schedule of 2 of subclass 117- Orphan visa requires that at the time of application the named visa applicant is an orphan relative of an Australian relative (cl.117.211(a)), or is not an orphan relative only because she has been adopted by an Australian relative (cl.117.211(b)). The named visa applicant must continue to satisfy that criterion at the time of decision.

   Additionally, ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is attachment to this submission and labelled “Annexure 1”. The term an ‘Australian relative’ is defined as 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): r.1.03. In the present case the review applicant, who is the aunt of the visa applicant, is the relevant Australian relative. The review applicant is a permanent resident.

   Age – Must have not turned 18 years of age

   Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. At the time of application the visa applicant was aged [14] years old. Accordingly, r.1.14(a)(i) was satisfied by her at the time of application and decision.

   Must not have a Spouse or be in a de facto partner

   Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence to suggest that the visa applicant had a spouse or de facto partner at the time of application. Nor is there any evidence to suggest she does so at the time of this decision. Accordingly, r.1.14(a)(ii) was satisfied by the visa applicant at the time of application and continues to be satisfied by her at the time of decision.

   Must be a relative of an Australian Citizen/ Permanent Resident

   Regulation 1.14(a)(iii) requires that visa applicant is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

   The review applicant is a permanent resident. The visa applicant has been confirmed by DNA test results to be the biological niece of the review applicant. Therefore, the visa applicant is a relative of the review applicant. Accordingly, r.1.14(a)(iii) was satisfied by the visa applicant at the time of application and continues to be satisfied by her at the time of decision.

   No parental care – Reg 1.14b

   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.

   Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

   The visa applicant father, namely Saidi Kalizeti. Alias Kali was assassinated in 2003.

   The Bantu patriarchal tradition requires the children to remain within the paternal family when the father passes away. Cristele's mother, Esperance Nzale, consequently brought Cristele to Justine Furaha Kalizeti’s Family [ review applicant]. The review applicant’s father also passed away, was murdered in the same incident as Cristele's father. As per Congolese tradition a ceremony was organised in review applicant’s family during which Cristele's mother transferred her care onto the review applicant in a form of customary adoption. Such an informal adoption is legally accepted in the DRC and it does not need a formal permission or court order to foster a relative when it's agreed by the parties that you are in a position to offer them a better life. Some witnesses attended and a traditional ceremony was conducted which was considered sufficient. This happened in the city of Oicha in the territory of Beni where they had fled the war from Bunia (around 170 km).

   The review applicant took the responsibility of taking care of Cristele Kalizeti[visa applicant] until she becomes an independent adult. The review applicant did not have any difficulty supporting the visa applicant financially because the review applicant was already independent and as a professional tailor and managed her own tailoring workshop that was paying very well.

   The Congolese tradition allowed Esperance to pay visits to Cristele Kalizeti whenever she wished and vice versa but the paternal family has the traditional right to decide where they live with the child.

   In 2004 the review applicant along with visa applicant fled the insecurity from Oicha to Kisangani (around 770 km). Following in 2007 the review applicant along with visa applicant returned from Kisangani to Bunia (around 750km). Upon return to Kisangani a new intense war commenced in Bunia. On the review applicant and visa applicant arrival to Bunia, the review applicant heard that the visa applicants mother Esperance had returned to Bunia few weeks earlier and then she had fled the recrudescence of the ethnic war that opposed the Hema people to the Lendu people and that, in the direction she took, many fleeing people had been killed and Red Cross had been burying their bodies. Esperance is a Lendu.

   Attempts to locate the whereabouts of applicant mother

   In 2007 the review applicant released a missing person announcement through "Radio Candip" in Bunia to search for Esperance Nzale but no success. In 2008 the review applicant passed another announcement to the radio but nobody was able to locate the visa applicant’s mother Esperance Nzale.

   Between 2007 and 2008 the review applicant sent people to local markets to search for Nzale but with no success. Before fleeing the DRC in 2008 the review applicant visited the forcibly displaced people's camp run by MONUC (United Nations peacekeeping force in the Democratic Republic) near Bunia airport and inquired if they could have any clue about Esperance in their system but without any success.

   The review applicant was a human rights defender in the DRC and member of a war orphans' movement and was allowed to visit the UN mission a couple of times (this was one of the reasons the review applicant was persecuted by the government and fled the DRC in 2008 and resettled in Australia in 2014).

   The review applicant continued with attempts to locate Esperance (visa applicant’s mother) in Uganda in 2008 whilst searching in 3 refugee camps (Kyangwali, Kyaka I, Kyaka II) for Cristele's mother but she couldn’t be located.

   Upon the arrival of review applicant in 2014 to Australia, she [review applicant] transferred money few times to people in Congo who went to several local markets in the area Esperance could have fled including in the mining areas but there were no signs of her.

   The review applicant didn't use Red Cross service when she [review applicant] lived in Congo for Esperance and Uganda, because in Congo Red Cross was seen as a service that treated wounded people during war and buried the dead; not as a possible tracking service for missing persons.

   During the 32 year reign of president Mobutu SeseSeko, there was no war in the DRC (Zaire), which meant that the Red Cross was not a familiar organisation to most people in that time. Red Cross in Congo became known to the people by seeing them (Red Cross Congo) carrying dead bodies and wounded people during the long war that started in 1996 against president Mobutu and which continued against Laurent Desire Kabila until beyond 2004 against Joseph Kabila. The review applicant only knew that she could use Red Cross for tracing missing person during the application process in 2017.

   The review applicant made contact with Red Cross in Adelaide in February 2017 concerning the whereabouts of review applicant’s sister in-law but the outcome of the search dated 31 July 2017 came with an unsuccessful result. Following, Red Cross closed the case since then given that after five months of searching, they too were unsuccessful in tracking down Esperance or any signs of her being alive.

   Between 2017 and 2018 the review applicant attempted in vain with assistance of different people to search along Lac Albert in the Eastern Congo where many people were killed. This was another search for missing persons that the review applicant sent to the popular Radio CANDIP in July 2018 in Bunia which proved to be unsuccessful.

   Additionally, the review applicant continued and made contact with Red Cross in Congo who commenced a new search for visa applicant’s mother and provided a letter dated 1.12.2018 stating that Esperance Nzale could not be located. The review applicant didn’t stop there and also made last and final attempt to locate the visa applicant’s mother through Congolese Christian Community Church in Uganda, who advised review applicant on 10.12.2018 in writing that after extensive searches that they were unsuccessful in locating Esperance Nzale, and her whereabouts remain unknown.

   Australian Red Cross Tracing of missing Mother of visa applicant and issue in its Tracing letter issued dated 31.7.2017 ARC

   I like to draw your attention to a previous Australian Red Cross tracing letter dated 31.7.2018 which had a general disclaimer on its template letter stating that:

   “Please note that a failure to locate a sought person through the Red Cross Red Crescent Movement cannot be considered conclusive and should not be  used in any way by the enquirer or a third party as evidence of loss of contact or to attribute the status of ‘missing’ to a person in legal proceedings or for immigration purposes.”

   The delegate for the minister upon review of the ARC letter dated 31.7.2017 made an assessment and stated as follows:

   “On the information provided, my view is that your mother cannot be considered of ‘unknown whereabouts’ because until 2017 there have been no attempts to locate  her whereabouts. I have also considered and placed some weight that the ARC letter (folio87) has declared “please note that a failure to locate a sought person through  the Red Cross Red Crescent Movement cannot be considered conclusive and should not be use in any way by the enquirer or a third party as evidence of loss of contract or to attribute the status of ‘missing’ to a person in legal proceedings or for immigration purposes”.

   The delegate for the minister did not make the correct assessment of the ARC letter and did not take into account the vital information from ARC letter namely the outcome of its search, which clearly stated that sought person could not be located.

   The delegate for the minister only made regard to ARC letter dated 31.7.2018 disclaimer which stated that this letter should not be used for migration or legal purposes. Additionally, the delegate for minister further added that ARC letter is not considered as “reliable evidence”. The PAM3 does not have a conclusive or strict list of what is considered as “reliable evidence” for subclass 117 Orphan Visa applications. The PAM3 policy as well as Migration Act 1958, Schedule 2 (Subclass 117 Orphan Visa) to not have an exhaustive list of what is considered reliable evidence. Rather, it must be noted that Australian Red Cross in Australia and Tracing Migration Section is a reliable source which people attend to trace their missing loved ones.

   Following, the visa refusal of subclass 117 visa for visa applicant dated 8 October 2018, the review applicant as well as Ms ArnelaTolic, representative for review applicant made further contact with ARC in Adelaide in respect to its letter dated 31.7.2018 and in particular the disclaimer it had listed that its tracing letter cannot be used for legal or migration proposes.

   After consultation with its ARC head office in Melbourne, Ms ArnelaTolic had been advised that ARC in Adelaide used the wrong letter template with disclaimer and there is no preclusion that ARC issued tracing letters cannot be used for legal or migration purposed. The ARC admitted that an administrative error was committed by ARC Adelaide by issuing tracing letter dated 31.7.2017 on wrong template, which partially influenced for the subclass 117 visa application to be refused.

   Therefore ARC re-issued an updated tracing letter to Miss Justine Furaha Kalizeti dated 22.11.2018 which confirms that red cross has undertaken relevant and detailed searches and confirmed that the visa applicant’s mother could not be found. This confirms that the whereabouts of the applicant mother remains unknown, which reflect the same outcome as ARC tracing letter dated 31.7.2017.

   The visa applicant life in Uganda- Subject to risk of sexual assault as minor

   The visa applicant,Miss Cristele Kalizeti left the DRC to Uganda since April 2015 and is living in very bad condition waiting for this family reunification through subclass 117 application which was originally lodged in 2016. The visa applicant cannot go back to the DRC because of the increasing insecurity there such as rapes, extreme exploitation of children, etc.

   There is also nobody to look after the visa applicant because her grand-mother (the review applicant mother) who lived with visa applicant in DRC after review applicant had fled suffers from post traumatic stress disorder (PTSD) that seems to be taking a turn for the worst since her husband was assassinated (along with Cristele's father).

   The war in the DRC has resulted in over 6 million dead so far and the killings are going on according to human rights services reports.

   See UN 22 OCTOBER 2018, report on the DRC as found at: accessed on 04/11/2018.

   PAM3 Policy on Court order/ Adoptions

   Whilst the PAM3 policy stated that “mere existence of a court order removing the child from the custody of a parent is not proof that a parent is incapacitated”. The adoption in this matter has been acquired not for sole purpose of removing the child from custody of its parent, but rather to provide care for child as required in 2003 for visa applicant after her father’s passing.

   Additionally, it has come to our attention that in the application form 47ch, at question 49, the answer “Yes” was ticked to the question “Does this application relate to a state or territory sponsored adoption or an Australian state or territory supported child?” This was an administrative error and the correct answer to this question based on applicant circumstances is “NO”. It is not known whether the above answer to question 49 at form 47ch caused the delegate for minister to raise question about adoption formalities. An adoption certificate from civil registrar in Kabondo Kisangani and a Court order from Children's court of Kisangani are attached. Any other related questions can be explained by review applicant.

   Within the certificate of adoption it is also advised that the visa applicants mother Esperance fled the war in a different direction and since then she has not been able to be found. Based on the information provided, the court awarded customary adoption on the basis of a statement made by witnesses. The delegate for the minister stated that given the lack of “objective evidence” leading to the certificate of adoption, limited weight can be afforded it”. The PAM3 provisions do not have an exhaustive list for Congo adoption laws and processes that must be followed, hence it cannot be said that adoption decree is given limited weight, due to formal process the review applicant followed to obtain the said certificate of adoption. While the review applicant has provided an adoption letter and a children's court order, the review applicant insisted that in the Democratic Republic of Congo the adoption of an orphan relative is a customary matter which does not require formal consent unless needed to some extent.     

   Best interests of a child

   Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. There is no evidence before the Tribunal to suggest that the grant of the visa would not be in her best interests. Accordingly, r.1.14(c) is satisfied by the visa applicant.

   Given that there is no evidence of the contrary, clause.117.211 is satisfied by the visa applicant.

   Conclusion  

   For the reasons as mentioned in this submission, the first named visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the first named visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, I seek that the Tribunal finds that cl.117.211(a) is met and continues to be met at the time of this decision.

   “Annexure 1”

   Reg 1.14 Orphan relative as per Migration Regulations (1994)

   Orphan 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.

1. At the Tribunal Hearing, during an extensive process exceeding four hours, I sought from the review applicant, the applicant and the witness, more detail on some of the information in the written submission and questioned claims made in it.

Age – r.1.14(a)(i)

1. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicant provided a certified translation of a Birth Certificate stating that she was born on 5 August 2002 to Saidi Kalizeti (father) and Esperance Nzale (mother). This would make her thirteen years of age at the date of visa application. However, I note that this registration occurred in Bunia, Democratic Republic of Congo on 8 April 2015. The Department was not satisfied that the birth date provided was a true representation of events but based on the photographs of the applicant provided to it, accepted that she was less than eighteen years old at the time of visa application. On 9 October 2019, the review applicant provided to the Tribunal an updated Refugee Family Attestation from the Office of the Prime Minister, Uganda, issued on 2 August 2019, which included the applicant’s date of birth as 5 August 2002. I find that the applicant was less than eighteen years of age at the time of visa application.

2. Furthermore, I find that the applicant has not yet turned eighteen at the time of this Decision.

3. Accordingly, the Tribunal finds that r.1.14(a)(i) was met at the time of application and continues to be met at the time of Decision.

Spouse or de facto partner – r.1.14(a)(ii)

1. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence before me that the applicant had a spouse at the time of visa application or has a spouse at the time of this Decision.

2. Accordingly, the Tribunal finds that r.1.14(a)(ii) was met at the time of application and continues to be met at the time of Decision.

Relative – r.1.14(a)(iii)

1. 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 r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa. On the evidence before it, I am satisfied that the review applicant, Justine Kalizeti, is the sponsor of the applicant and is an Australian permanent resident. Apart from the evidence of the applicant, review applicant and witness at the Tribunal Hearing, all of which I accept, DNA test results confirmed that the sponsor is the aunt of the applicant and so, the Tribunal is satisfied that she is a relative of the applicant (within the meaning of r.1.03 as set out above) at the time of application and/or decision.

2. Accordingly, the Tribunal is satisfied that r.1.14(a)(iii) was met at the time of application and continues to be met at the time of Decision.

No parental care – r.1.14(b)

1. 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.

2. The review applicant told the Tribunal Hearing that, consequent on Bantu patriarchal tradition, after the murder of her own father and her brother, who was the applicant's father, as the oldest surviving sibling, she became responsible for the care of the applicant until she becomes an independent adult.

3. She told the Tribunal Hearing that her father, brother and a maternal uncle were murdered by Congolese rebels near a lake while fleeing from the town of Bunia to the town of Beni. Certified translations of a Certificate of Adoption dated 14 September 2017 and Court Order Number 1663, dated 22 September 2018, relating to the applicant, refer to the death of her father in 2003. The Decision Record of the Departmental delegate does not dispute this claim that the applicant's father died in 2003. The witness at the Tribunal Hearing, Bish Zahinda, the brother-in-law of the review applicant, gave further details of the killings. He said that the three men were temporarily separated from the applicant and her mother on the journey along the lake from Bunia to Beni when they went in search of food and were shot by rebels, while the mother and daughter survived because of the temporary separation.

4. The Tribunal is satisfied that the applicant's father died in 2003.

5. The review applicant told the Tribunal Hearing that after this incident, the applicant's mother brought the applicant to the review applicant's remaining family, of which the review applicant was the oldest of the siblings. She said that Bantu patriarchal tradition requires that in this situation the children have to remain with the family of their dead father. She said that as a consequence of this and being the oldest, full responsibility for care of the applicant was transferred from the applicant's mother to her, the review applicant, through "customary adoption." She said that the Certificate of Adoption, dated 14 September 2017 and Court Order Number 1663, dated 22 September 2018, simply formalised the traditional or customary arrangement which had been operating since 2003.

6. I asked the review applicant whether, under patriarchal tradition and customary adoption, the biological mother loses her right to care for the child if she remains a widow, or only if she remarries, or if she retains any rights. The review applicant said that if she wants to live with her child, the biological mother must stay in the paternal family. If she leaves the family she forfeits any right to make decisions about the child but can come to visit. She said that the applicant's biological mother, after leaving the child with her, had never returned to visit

7. At the Hearing, I asked the review applicant why, if the applicant was her adopted daughter, an application had been lodged for an orphan relative visa, rather than for a child visa, the definition of which included an adopted child? She said that she was not the applicant's biological mother and had applied for an orphan visa because her father had been killed and her mother was missing. I asked the applicant/review applicant's agent if she could provide any further explanation on the type of visa for which application had been made. The agent said that, on the information available to her, she advised that the orphan visa was the appropriate pathway.

8. Witness Bish Zahinda told the Tribunal Hearing that, apart from being the oldest, the review applicant also was the most independent person on the applicant’s father's side of the family as the owner of a tailoring business with employed staff. He said that under the traditional adoption arrangement, a child's biological mother has the choice of staying with the paternal family or leaving and going her own way. If she adopts the latter option she and the child can visit each other but the child's home remains with the paternal family and the person who has adopted her. He said that the applicant's mother remained with the paternal family until she finished breastfeeding the applicant and then chose to leave Beni and return to Bunia. He said that part of the reason for this was that in Beni they were all living in a refuge and part of the reason may have been that, being relatively young, she hoped to find a new husband. I asked the witness why the review applicant would be the one taking the traditional adoption responsibility, rather than the applicant's grandmother, as the most senior surviving person in the family? He said that she was suffering severe post-traumatic stress syndrome following the shootings and was not capable of caring for the then young baby, while the review applicant also was the most independent person in the family who also was looking after her mother, the grandmother of the aplicant, as well as the applicant.

9. The review applicant told the Tribunal Hearing that after the murder of her father and brother by the Congolese rebels in 2003, she became actively involved in a non-–government organisation which lobbied to obtain justice from the government for children whose parents had been murdered by the rebels. She said that the profile she developed in this role made her a target for some of the rebels who had become part of a new government resulting from United Nations conciliation. She said that as a result of this, in 2004, she fled with the visa applicant from Beni to Kisangani and in 2007, to Bunia. In 2008 she fled Congo for Kampala, in Uganda. She said that the cross-country trek was too severe for a six-year-old child and she left the applicant in the care of her younger sister, Mawuwa. She said that, together with her siblings, Mawuwa, Bernard and Pierre, she applied to come to Australia as a refugee and eventually, with the exception of Mawuwa, all of them were approved and arrived in Australia on 3 July 2014. She said that they had been sponsored by her half-sister and brother-in-law, the witness, Bish Zahinda, who had come to Australia in 2004. She said that Mawuwa was rejected because, at the time, she was in a de facto relationship. Bish Zahinda elaborated on this evidence at the Tribunal Hearing. He said that some of the former rebels who were war criminals became part of the national army under the United Nations conciliation and that some of the new government officials were among the rebels who had killed the applicant's father. He said that the review applicant had become a leader among those seeking justice for the war orphans, including providing information to the United Nations. He reinforced that this made her a target for some in the new government, causing her to flee to Kampala, Uganda, leaving the applicant in the care of her younger sister Mawuwa. He said that while in Kampala, the review applicant continued her tailoring profession and sent money back to the Congo to support her siblings and the applicant.

10. I had noted that Departmental notes referred to the applicant having been included as a dependent in Mawuwa's visa application which was refused on 2011. When questioned about this, the review applicant said that this younger sister had been in a de facto relationship at the time and that was the reason for her application for an Australian visa being refused. When asked why the applicant was included in this sister’s application, rather than her own, the review applicant said that it was because when she fled to Uganda, the applicant had remained in Congo because of the dangerous nature of the journey and so, was living with Mawuwa at the time they all lodged their Australian visa applications. However, she said that she was still responsible for the applicant and was providing for all of her siblings remaining in Congo, so both the applicant and Mawuwa were her dependents. Bish Zahinda told the Hearing that there had been some confusion regarding Mawuwa's visa application because during the process she had fled to Uganda. He said that he wrote to the Australian post in Nairobi, Kenya, to advise them that she was now in Kampala but never received any acknowledgement regarding this application and when he rang the Department in Australia was told that it could not be said that an application had been lodged until acknowledgement was received. He said also that the review applicant, while in Uganda, had provided financial support for the applicant and her siblings remaining in Congo, including providing sufficient money to pay for their housing, rent and food.

11. When the applicant was questioned, during my telephone interview with her, on the circumstances of her living arrangements since the death of her father, she said that as she was a baby when this occurred she only knew about the early years from what she had been told by the review applicant and other members of the family. She said that as she got older and became aware of her living arrangements, after the review applicant fled to Uganda, she had lived in Congo with her aunt Mawuwa and subsequently, with her paternal grandmother. She said that she had fled to Kampala in 2015 and lived there with her aunt by marriage, the wife of the review applicant's brother Bernard, Liliane, until Liliane departed to join her husband in Australia in 2016. The review applicant had provided documented evidence, being numerous MoneyGram receipts for transfers of money to Liliane during 2016, which she claimed provided financial support for the applicant. I accept the veracity of this claim. The applicant said that Mawuwa also had fled to Kampala and she had lived with her since Liliane departed for Australia. I asked the applicant what was different about her relationship with her aunt Justine, the review applicant and her aunt Mawuwa. She said that the review applicant was the one whom she had known from early childhood, who had arranged for her to go to school and had provided everything she needed. She said that the review applicant was always the one in charge.

12. I accept the claims of the applicant and review applicant that, notwithstanding the period of time which the applicant has spent living with other members of the review applicant's family, the review applicant has taken the overall responsibility for care of the applicant.

13. On the evidence before it, the Tribunal accepts that the review applicant has had effective parental responsibility for the applicant since 2003.

14. However, the Tribunal notes that the customary or traditional adoption, upon which this parental care is based, was awarded by the Congolese court on the basis of statements that the biological mother of the applicant could not be found, which statements the Departmental delegate afforded only limited weight. In particular, based on the statements, the delegate had concerns that it was not until 2017 that attempts were made to locate the whereabouts of the applicant's biological mother. The delegate had concerns also that a letter from Australian Red Cross, dated 9 November 2017, said, inter-alia, "a failure to locate a sought person through the Red Cross Red Crescent Movement cannot be considered conclusive and should not be used…… to attribute the status of 'missing' to a person…..for immigration purposes."

15. When the review applicant was asked about attempts to find the applicant's mother, she said that attempts have been made over a number of years but that Congo was in a state of chaos and a humanitarian disaster where you couldn't find anyone. I asked her whether there had been any attempts to find other members of the mother's family and she said yes, that both the Red Cross and church organisations had tried to find both the mother and family members, without success.

16. Previously, in a submission to the Tribunal dated 12 December 2018, the applicant/review applicant's agent said that both the review applicant and the agent had made contact with Red Cross in Adelaide who had confirmed that the Red Cross letter to which the Departmental delegate referred included the wrong template and that Red Cross tracing letters are not excluded from being used for migration or other legal purposes. Attached to the submission was a letter from Australian Red Cross, dated 27 November 2018, confirming that, on 14 February 2017, Australian Red Cross had opened a tracing enquiry for the applicant's biological mother, which it transmitted to the International Committee for Red Cross, Kinshasa, on 11 April 2017. On 28 July 2017, ICRC Kinshasa informed Australian Red Cross that they were unsuccessful in locating the sought person despite their efforts, which included searches of Bigo in the Democratic Republic of Congo. Also attached to the submission was an original French language letter from Bunia City, Congo, Red Cross, Office of Family Link Reconstruction Services, dated 1 December 2018, together with a certified English translation, providing an update on Family Link Reconstruction searches for the applicant's mother conducted since July 2017. It declared that searches had been conducted in Bunia and villages/rural areas surrounding Bunia, villages located along Lake Albert, at the border with Uganda and areas of large groups of internally displaced people. It said that Red Cross regrets being unable to locate Esperance Nzale and her whereabouts remain unknown. Importantly, neither of these letters stated that their content could not be used for migration or other legal purposes.

17. Also attached to the submission was a letter dated 10 December 2018 from the Congolese Christian Community in Uganda, signed and stamped by Bishop Innocent Mubutu Kuzindamolo, General Overseer and Rev Pastor Francois Dioche Jikpa, General Secretary. The letter referred to the outcome of the organisation's search for Esperance Nzale saying that it was conducted in the areas where Congolese led churches are located, including Kampala City, Kyaka I Refugee Camp, Kyaka II Refugee Camp and Kyangwali Refugee Camp. It said that the search had been unsuccessful and that the quality of the search leads the organisation to doubt that she had ever migrated to Uganda.

18. The Tribunal notes that reference was made also to the documents described in paragraphs 41 and 42 above in the submission dated 18 January 2019 from the applicant/review applicant's agent. On the evidence before it, the Tribunal accepts that extensive searches conducted in 2017 and 2018 failed to locate the applicant's biological mother. However, in light of the Departmental delegate's concerns regarding the absence of evidence about any searches being conducted prior to the lodgement of the visa application and noting that the submission dated 18 January 2019 referred to a number of attempts to locate the applicant's mother before 2017, I asked both the review applicant and witness Bish Zahinda to elaborate on any searches that had been undertaken prior to 2017. I asked the review applicant whether it was possible to provide any documents of the claimed earlier attempts to find the mother or to obtain evidence from those whom it was claimed undertook searches in 2007. The review applicant responded that this might be possible but would be difficult because the search attempts had been communicated mouth-to-mouth, from village to village and had happened a long time ago. I asked whether it was possible to make contact with these people who undertook the searches eleven or twelve years ago. She said that she had sent people to enquire at local markets and to visit the displaced peoples’ court, while in 2014 she had sent money to local people to search mining areas. She said that she would do her best to contact some of these people, if they were still alive but she said that in Congo the situation is bad and today, someone might be alive but tomorrow they are dead.

19. Witness Bish Zahinda said that, before departing for Australia in 2004, he had undertaken some searches for the mother at displaced persons camps in the Bunia and Uganda, as well as mining areas near Kinshasa, without any success. He said that there had never been any communications from the applicant's mother to the paternal family since she left the applicant with the review applicant. Also, he described the various family members in a series of photographs which had been taken over a number of years, including during a visit which he and his wife had made to the family members remaining in Africa in 2018. These photographs were provided by the review applicant to the Tribunal.

20. 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 Declaration

    I/ We,

    Justine Furaha Kalizeti

    [full name]

    of [specific address] SA 5108

    [address]

    do solemnly and sincerely declare that

    When 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 Declaration

    Concerning: Search for Esperance Nzale

    I, 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 January

    2020, by: Brigitte Dz'venga Njangusi

    Statutory Declaration

    Concerning: Search for Esperance Nzale

    I, 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 Declaration

    Concerning: Search for Esperance Nzale

    I, 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 Kabulabo
    Registrar at the Children's Court of Bunla, JP.

1. On the evidence before it, the Tribunal is satisfied that sufficient attempts have been made to establish the whereabouts of the applicant's biological mother without success and therefore, it is satisfied that the mother is either dead or of unknown whereabouts.

2. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of Decision.

Best interests – r.1.14(c)

1. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. No evidence has been provided to the Tribunal to indicate that the grant of the visa to the applicant would not be in her best interests. On the contrary, various elements of the evidence, adduced in the paragraphs above, indicate that being reunited with the review applicant would be in the applicant's best interests.

2. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of Decision.

Has the applicant been adopted by the Australian relative?

1. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

2. As described in paragraph 30 above, I am satisfied that the applicant was adopted by the review applicant under "customary adoption" procedures in 2003. Therefore, I am satisfied that the applicant, having met all of the requirements of being an orphan relative, as described in the paragraphs above, was not an orphan relative at the time of visa application and at the time of my Decision only because of adoption by an Australian relative.

3. Accordingly, cl.117.211(b) is met and continues to be met at the time of Decision.

4. Given the findings above, cl.117.211 is met.

5. The Tribunal finds that the visa applicant continues to satisfy the criterion in cl.117.211. It follows that cl.117.221 is met.

Does the visa applicant meet the sponsorship requirements?

1. Clause 117.212 requires that at the time of application the visa applicant is sponsored by the Australian relative or the Australian relative’s spouse or de facto partner. The Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. The sponsor must have turned 18, and be a settled Australian citizen, settled Australian permanent resident or settled eligible New Zealand citizen. If sponsoring, the spouse or de facto partner must cohabit with the Australian relative. ‘Settled’, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period: r.1.03.

2. On the evidence before it, the Tribunal is satisfied that the visa applicant was sponsored by the Australian relative, that the relative had turned 18 and that the relative was a settled permanent resident of Australia.

3. Accordingly, cl.117.212 is met.

4. At the time of decision, cl.117.222 requires that the sponsorship has been approved and is still in force. The Tribunal is satisfied that the sponsorship has been approved, is not affected by limitations imposed by r.1.20KB and is still in force at the time of Decision.

5. For these reasons, cl.117.222 is met.

6. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. 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.

Grant Chapman
Senior Member