Kanyange (Migration)

[2022] AATA 2276

Kanyange (Migration) [2022] AATA 2276 (1 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Celine Kanyange

VISA APPLICANT:  Miss Esther Ishimwe

REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)

CASE NUMBER:  2105414

HOME AFFAIRS REFERENCE(S):          F2017/049781

MEMBER:Meredith Jackson

DATE:1 April 2022

PLACE OF DECISION:  Brisbane

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 1 April 2022 at 6:01am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – new and significant evidence – DNA information tracing genetic links between the sponsor, the visa applicant and his parents – sponsor and applicant are aunt and niece – Tribunal is satisfied that the applicant’s parents died of injuries – definition of ‘orphan relatives’ met – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03,1.14, Schedule 2, cls 117.211,117.221

CASES
Axon v Axon (1937) 59 CLR 395
Kim v MIAC [2007] FMCA 798
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    The visa applicant applied for the visa on 5 June 2017. 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.

2. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 which requires that the applicant is an orphan relative of an Australian relative of the applicant. The delegate refused to grant the visa on the basis the applicant had not sufficiently demonstrated that he was an Orphan Relative as defined in Regulation 1.14.

3.    The review applicant Celine Kanyange appeared before the Tribunal by video conference on 24 March 2022 to give evidence and present arguments. The Tribunal was scheduled to hear oral evidence by telephone from South Africa from the visa applicant, Esther Ishimwe and her sister, Hyedidia Ishime, however lines could not be maintained to the applicant’s mobile phone.

4.    The Tribunal hearing was conducted with the assistance of interpreters in the Kiswahili, Kirundi and English languages.

5.    The review applicant was represented in relation to the review by Mr Nathan Willis.

6.    In the hearing, the Tribunal liaised with the applicant, through her representative, concerning the overlap and confluence of many aspects of the present matter with those in the three related cases, where the visa applicants are the applicant’s sister, Hyedidia Ishime and her cousins Jarco Nzomwita and Junior Nzomwita, the sponsor is Celine Kanyange and all four applicants in the related matters live together in South Africa. While discrete hearings were held for each matter, the applicant and Tribunal each accepted that it was appropriate and practical, and of no foreseeable adverse consequence to the applicants and witnesses, to carry over relevant oral evidence from one matter to the other as necessary. Accordingly some of the information in this decision is based on statements made by the sponsor, Celine Kanyange or the witness Ms Delou Uwayo, in related hearings and on circumstances the four applicants have in common.

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

BACKGROUND

8.    The review applicant is Celine Kanyange, born in Burundi in1973, an Australian citizen by 2020 grant. Ms Kanyange is employed as a day care worker. The visa applicant is Esther Ishimwe, a Burundian national born in 2003 and currently resident as an asylum seeker in South Africa. Since the primary decision, Ms Kanyange has provided DNA testing results to confirm that she and the visa applicant are 470 times more likely to be aunt and niece than unrelated. The application is one of four related cases concerning Esther Ishimwe, her older sister Hyedidia Ishime and her younger cousins, Junior Nzomwita and Jarco Nzomwita. Ms Kanyange is the sponsor for each of the four. The visa applicant, Esther Ishimwe claims she cannot be cared for by either of her parents because they are missing, presumed dead.

9.    It is not disputed that with the visa application, the applicant provided false documents in support of her application: a false birth certificate for herself and false death certificates for her mother and father. The applicant also provided a non-genuine South African court order, stating that her parents were presumed to have died in the year 2015.  After the Department raised this with the visa applicant, she indicated in a response that the documents had been provided to her by a third party and she was not aware they were false when she submitted them. Esther Ishimwe acknowledged the documents were false in a Statutory Declaration of 1 December 2020 and stated that she was seeking to provide authentic birth and death certificates and she and her relatives had briefed a Durban-based lawyer to trace them. At the time of this decision, the applicant has not provided genuine birth and death certificates or explained why the lawyer could not access the certificates. In a response to a written Tribunal request for information regarding the absence of valid birth and death certificates. the applicant stated only that they were not able to be provided.

1. The review applicant has provided evidence to the Tribunal that the Red Cross Restoring Family Links Service was engaged in 2021 to try and locate the visa applicant’s parents and had been unable to trace them but is continuing its search.

ISSUES AND LAW

1. The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative.

2. 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.

3. ‘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, Celine Kanyange is the relevant Australian relative.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

1. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl 117.211(a) is met and continues to be met at the time of decision.

Age – reg 1.14(a)(i)

1. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicant has provided an Asylum Seeker temporary permit as evidence of her identity. The Tribunal is satisfied on the evidence that at the time of application, the visa applicant was aged 13 years and is aged 18 years at the time of this decision, which does not preclude her from satisfying the time of decision age criterion.

Spouse or de facto partner – reg 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 the Tribunal that the applicant has a spouse or de facto partner. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

Relative – reg 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

2. The sponsor’s application in this matter concerns one person of four persons for whom the sponsor has lodged Orphan Relative visa applications. The present matter is related to matters also before the Tribunal (as constituted in this matter) for Hyedidia Ishime, Junior Nzomwita and Jarco Nzomwita, who also have been refused Orphan Relative visas on the basis that they did not provide sufficient evidence to satisfy the requirements of the Regulations.

3. As described earlier, it is common ground that false birth and death certificates were provided in this matter. The delegate’s decision records that after the documents were found to be false, the Department put this as adverse information to the applicant and she confirmed they were false. The delegate stated in the primary decision that because the applicant had not provided an original birth certificate issued by relevant authorities in Zambia for the Department to clearly trace the line of relationship between the visa applicant and the sponsor, the delegate was not satisfied that she had provided sufficient evidence that she is an orphan relative of the sponsor.

4. The Tribunal notes that the primary decision was made on the basis of all the evidence before the delegate at the time of decision. At the time of review, however, new and significant evidence is before the Tribunal that was not available to the delegate. This includes DNA information identifying a genetic link between the sponsor, the visa applicant and her parents.

DNA evidence

1. On 8 September 2021, the applicant submitted to the Tribunal a Kinship Testing Report from Identilab, a NATA accredited, Australian-based provider of DNA tests. The Identilab report provided results for five sample sets relating to the sponsor, Celine Kanyange, the visa applicant Esther Ishimwe, Hyedidia Ishime, Jarco Nzomwita, Junior Nzomwita, all of whom had claimed to be related. The DNA testing was undertaken to determine whether Celine Kanyange is the aunt of the visa applicant Esther Ishimwe and Hyedidia Ishime, Junior Nzomwita and Jarco Nzomwita. An assumption was made that Celine Kanyange is the full sibling of Esther Ishimwe’s and Hyedidia Ishime’s father Jean-Luc Nzomwita, and the half sibling of Junior Nzomwita’s and Jarco Nzomwita’s mother, Martine Nzomwita.

2. In the present matter, the DNA test results indicate that it is 470 times more likely that Celine Kanyange and Esther Ishimwe are aunt and niece rather than unrelated, corresponding to a probability of 99.78860935 per cent, using African population data. The Tribunal is satisfied that as the DNA evidence indicates that the sponsor and applicant are aunt and niece rather than unrelated.

3. The Tribunal notes the assumption within the DNA report that Celine Kanyange is the full sibling of the applicant’s father. The Tribunal is mindful that Departmental files contain documents provided with the review application: birth certificates issued in 2016 for Celine Kanyange (born Burundi, 1973) and Jean-Luc Nzomwita (born Burundi, 1978) certifying that their parents are Japhet Simbakira and Christine Nyandwi; and a birth certificate for Martine Nzomwita, (born Burundi 1982) whose parents are Japhet Simbakira and Alice Minani. There is no suggestion before the Tribunal that these documents are falsified. The Tribunal is satisfied that the familial relationship is confirmed by the Burundi certificates and the visa applicant is a relative of the review applicant within the meaning of r.1.03 at the time of application and decision.

4. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

No parental care – reg 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. While the Tribunal has accepted that the review applicant and visa applicant are relatives, the absence of a genuine death certificates or a genuine court order presuming death means the capacity of the applicant’s parents to provide care remains unconfirmed.

Origin of the false certificates

1. The review applicant has recounted in detail how and why the falsified certificates were provided. As referred to earlier, the delegate’s decision and department files in the present matter record that the applicant provided a false birth certificate from the Zambian Government in 2016, indicating that she was born in Zambia on 14 June 2003. The applicant at the time of providing the document, also provided false death certificates for her parents, Jean-Luc Nzomwita and Esperance Uwimama, again purported to have been issued by Zambian authorities. On 30 October 2020, the Department wrote to the applicant concerning the adverse information about the false birth and death certificates. On 1 December 2020 the sponsor responded, stating that she had acquired the relevant documents through a person named Paidamayo Mawadzi in South Africa, to whom she had been referred through a church that the children attended. She stated that “neither the children or I were aware that (the documents) were false as we trusted and relied on this person to be an honest and decent person”, and that she had transferred funds to the children to pay for the certificate acquisitions. She stated that “we were shocked and surprised when we were informed by the Department that these documents were false.”

2. The Tribunal on a number of occasions sought an explanation from the review applicant as to why no replacements of the birth or death certificates had been provided on review, given that the primary decision records that a law firm named as Messrs Johan Jooste & Co Lawyers and Notaries in Durban, Zimbabwe and Zambia had been briefed to secure “legitimate documents”. In response to a written Tribunal request of 2 March 2022, the sponsor indicated that the law firm (then said to be based only in Durban) had been unable to secure valid birth and death certificates. Ms Kanyange said her previous lawyer, “Andrew”, had told her that the abovenamed law firm had made enquiries with the South African court system in relation to the whereabouts of the applicant’s parents but that no case had been filed in relation to their disappearance. She also stated it was her understanding that the children were afraid to approach police at the time, so did not report the disappearance at the time.

1. The Tribunal accepts that it is unlikely that valid birth and death certificates will be provided in this matter. The question for the Tribunal therefore, is whether in their absence, it can be reasonably concluded that the applicant cannot be cared for by her parents because they are dead, permanently incapacitated or of unknown whereabouts. In forming a view, the Tribunal has considered the following claims and evidence.

2. The sponsor claims that the applicant’s parents (who are also the parents of Hyedidia Ishime) went missing while the children were at church and the parents were out shopping with their infant son. As two of the children also involved, Jarco and Junior Nzomwita, had lost their own parents in a car accident in 2010, and Esther and Hyedidia’s parents were nowhere to be found, this left the children living together without parental supervision. The sponsor claims the events leading up to the disappearance were as follows. In a Statutory Declaration dated 23 May 2017, Ms Kanyange stated that the whereabouts of her brother and his wife, with whom she had lost contact, were revealed to her in a phone call to Australia by her friend Rose, who lives in Pretoria. Rose was a friend of Jean-Luc Nzomwita and his wife Esperance Uwimana and had attended their wedding in Durban in 2014. Rose located the sponsor’s brother and put the two in touch. Ms Kanyange claims she then spoke to Jean-Luc, who informed her of the deaths of her sister Martine and brother in law Patrick and told her he had care and custody of the two children of that marriage and was also continuing to look after her own twin children, James and Delou Uwayo. The issue of why these twin children were not with her from the age of six is that she had left them as will be referred to later. In 2015, however, Ms Kanyange states, communication with Jean-Luc ceased abruptly, and she was unable to contact him from then on. Her twin children Delou and James, still living in the home, reached out to her and informed her that their uncle Jean Luc and his wife, together with their baby son, had gone somewhere shopping on 27 March 2015 and had not come back; they could not find them anywhere and had not seen them since. Ms Kanyange stated she felt the three were likely to have been killed, because a common fate of refugees from other parts of Africa in South Africa was to meet with a violent end.

1. Esther Ishimwe is now 18 years old. She was unable to give oral evidence to the Tribunal in the hearing because a viable telephone line between her mobile service in South Africa to the Tribunal could not be maintained. The Tribunal discussed this with the applicant’s representative and noted that this was the second time in the related hearings the lines had fallen through from Africa. With the representative’s concurrence, the Tribunal indicated it would rely on a Statutory Declaration of 14 February 2022 from the visa applicant, wherein she stated that her parents went missing on 27 March 2015, when she was aged 11. In that declaration, she stated that when she and her sibling and cousins returned from church, which they attended three times a week, her parents were not at home. She was scared and panicking. She had not seen her parents since that day and does not know where they are. The statement is witnessed by the South African Police Service in Kwazulu-Natal.

2. In support of the claim that the parents cannot be located or may be dead, the sponsor and review applicant also provided a Statutory Declaration from Delou Uwayo, a shop assistant of Doolandella, Queensland who is mentioned above as one of the twins and a cousin of the visa applicant. Ms Uwayo was an impressive young witness. She gave credible evidence at the hearing that she was very familiar with the circumstances surrounding the disappearance of Jean Luc Nzomwita, his wife Esperance Uwimana and their infant son Daniel Nzomwita, because she was there at the time. She had been living with the family from the time she was six years old because her mother, the sponsor Ms Kanyange, had left the family without notice. Ms Uwayo states that on 27 March 2015, all the children had attended church without the adults. When they returned shortly after 6pm, Jean-Luc and Esperance were not at home. All efforts to find them, which she describes in detail, yielded no results. She and the other children did not go to police about it as they had no experience of how things worked in South Africa and did not trust the authorities. She and her brother stayed on with their cousins until 2018, before the siblings departed to be reunited with her mother in Australia.

1. The sponsor provided evidence that in 2021, Ms Kanyange initiated tracing investigations by the Australian Red Cross Restoring Family Links (RFL) service in South Africa, for the missing couple. A letter of involvement from the Australian Red Cross, dated 16 February 2022, indicates a case has been opened and assigned to the International Committee of Red Cross in Pretoria. The letter states that the Red Cross service has been involved in tracing the family since May 2021. In a submission to the hearing of 11 March 2022, the applicant provided evidence that the Red Cross RFL service database had been compromised by hackers and while there was no evidence her data had been affected, the cyber-attack may cause further delays in tracing the parents.

2. The sponsor claims the outcome of this chain of events is that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. As noted above, 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.

Credibility concerns

1. Despite the oral evidence of Ms Uwayo, in the absence of documentary evidence, there remain delicately balanced credibility concerns in this matter about whether the applicant can be cared for by either parent. Those concerns, which the Tribunal put to the applicant, are as follows.

   a.There are no valid death certificates for the parents before the Tribunal, and the applicant stated through her representative that none can be provided. Further, the sponsor has stated on the one hand that the two parents and their infant child may have been killed (refer to paragraph [29], above), however in her Statutory Declaration of 10 March 2022, Ms Kanyange declared that it is her understanding that Esperance and Jean Luc are missing rather than deceased. This raises a question as to whether the parents may, like their relative Ms Kanyange, have chosen to leave all but one of their children.

   b.Ms Kanyange claims, and supplies some evidence of amounts transferred, that she is “mother” to Esther Ishimwe and the other three children, that she is all they have as a carer, and has provided support to the visa applicant and the other three children since she learned of the disappearance of the visa applicant’s parents, yet the regular transfer and disbursement of funds is not fully established in evidence.

   c.The sponsor stated in the hearing that she has seven children of her own and she is struggling to make ends meet in two countries, with two separate dwellings and expense sets to fund, on her family income, yet she wishes to take in four more children.

   d.The sponsor spent three months in Africa over the Australian summer of 2021-2022 and made no apparent progress on seeking genuine birth and death certificates and did not seem to have been in South Africa with the children the whole time.

2. At the hearing, the Tribunal spent considerable time putting to the sponsor the concerns above, to attempt to clarify the facts and to engage with whether she may be seeking a migration outcome for Esther Ishimwe and her young relatives, rather than wanting to reunite and expand a family of young people and provide them with parental care.

3. Ms Kanyange gave evidence in the hearing in an emotional manner. She stated that after her brother had disappeared, she was the only one who would care about Esther Ishimwe and the others. They needed a mother, she said, and she was prepared to be theirs, and she had always supported them financially. She said while she was visiting Africa, she was with them in their house “every day, every day”, albeit she acknowledged she took two visits to Tanzania. Asked why she had told the Tribunal she was “unable” to provide birth and death certificates, she responded: “To be honest, I don’t really know where these children were born”. Ms Kanyange said she had not spent time in Africa looking for the certificates for that reason. Neither, while there, did she try to clarify the fate of her brother and his wife because “the Red Cross is taking care of that”.  Ms Kanyange presented, however, as genuine in her conviction that the parents were not to be found, and her concern for the children was palpable. The Tribunal asked why, given she had seven children of her own in Australia, she was now seeking to add Esther Ishimwe and three more to her family. She responded that they could not stay in South Africa without anyone; they could not finish high school let alone go to university and if here, they would be educated. It was costing her too much to maintain two homes in two countries. And the children (Esther Ishimwe and the three others) “needed the visas to come to Australia because they are intelligent and good children and they need a mother. They cannot stay there, in the camp, without one.”

4. The Tribunal also asked the applicant’s cousin, the witness Delou Uwayo, whether Esther Ishimwe’s claims, and those of the other parties in the matter and related matters, could be relied upon as genuine, given the absence of birth and death certificates. The Tribunal said it was possible the objective may be to gain permanent residency in Australia. The Tribunal said it had not been made clear why she and her brother, who are the sponsor’s biological children, had remained in Zimbabwe with their cousins while her mother went away and ended up in Australia.

5. Ms Uwayo in convincing testimony, such that the Tribunal was left with little doubt she was speaking candidly and truthfully, stated that she and her brother had lived with Esther Ishimwe and the other children before she wet with them in South Africa between 2015 and 2018. She and her brother stayed with Jean-Luc and Esperance from the age of six after her mother, the sponsor, left the children without a word. Ms Uwayo had been greatly distressed, the sudden departure was not explained to her. She only knew her mother had gone. She eventually found out her mother had gone to Malawi and then, much later, that she was in Australia. She recalled the events as follows: “I cried so much. I wanted to be with my Mum. It was really hard, other kids were always talking about their own mothers and I knew I had one, but she didn’t come. I was always hoping she would come back. My aunt and uncle were raising me and they loved me as parents and stuff, but I needed my Mum.” She was finally reunited with her mother in Australia in 2018.

1. The Tribunal said that if this could happen, perhaps Jean Luc and Esperance had done the same thing. Ms Uwayo was adamant it could not be the case. She said Jean-Luc and Esperance had raised them all lovingly; that they would “never, never had left their own children and us.” She said she believes that the parents and their infant son had died in 2015 as suspected. She stated that further, there is no chance the children who remain there can manage by themselves, because they are at the same risk. “They were sad when James and I left for Australia in 2018. They said to us, but you are our family, we have no parents, and now you are leaving. But I wanted to be with my Mum.”

2. The Tribunal has considered the events described by the sponsor and witness.  In terms of credibility, the Tribunal considers that Ms Kanyange spoke honestly despite her vague manner and demonstrated that she desperately wants the family to be reunited, which is why she has pressed on with this matter for years. Regarding the missing records and the lack of attempt to find them, the Tribunal accepts, as a person with limited experience of bureaucracy in various parts of Africa that Ms Kanyange has little knowledge of how to go about identifying where the children were born and in what circumstances she might be able to obtain valid documents without endangering them further as refugees. It bears emphasis that her representative has not secured them for the review.

3. Taking all the above into account, on balance, the Tribunal is satisfied the applicant is a witness of truth and is taking the matter seriously, in her way. She clearly regards Esther Ishimwe and the other children as her responsibility and sees them as intelligent and good young people.

4. The Tribunal is satisfied that Ms Uwayo, Esther Ishimwe’s cousin, is genuinely determined to see her young relatives come to the safety of Australia and takes her own familial responsibility very seriously. She was emotional but clear in giving evidence and she, more than any other participant or adviser, served to allay many of the Tribunal’s concerns of contrivance in this matter for migration purposes.

Conclusions

1. Having weighed all circumstances and evidence, the Tribunal accepts, for the purposes this particular matter, that given the apparent absence of contact from the missing parents, the statements of the various family members connected to the case, the Statutory Declarations of the witness and the inability of the Red Cross to find any trace of the missing parties, that the applicant’s parents Jean-Luc Nzomwita and Esperance Uwimana disappeared in 2015 as described. The Tribunal accepts that some seven years have elapsed since the they were last seen or heard from; and that this a long period to have been out of touch with children.

2. The Tribunal, having considered all the claims and evidence, finds the applicants parents are missing and may be dead.

3. Accordingly, the Tribunal is satisfied that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

4. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

Best interests – reg 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. There is no evidence before the Tribunal that the grant of the visa would not be in Esther Ishimwe’s best interests. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

Conclusion

1. The Tribunal is satisfied that the visa applicant is an orphan relative of an Australian relative as defined as defined in r.1.14 and the applicant satisfies cl.117.211 of the Regulations and cl 117.221 of Schedule 2 of the Regulations.

2. For completeness, the Tribunal has not made a finding on the provision of false documentation in the present matter because to do so may deny the applicant a tier of review.

1. 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 Schedule 2 to the Regulations; and

·cl 117.221 of Schedule 2 to the Regulations.

Meredith Jackson

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.