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…

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.

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Details

AGLC: Kanyange (Migration) [2022] AATA 2276
Case: [2022] AATA 2276
Decision Date: 1 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered the application of Ms Kanyange for a Subclass 117 (Orphan Relative) visa. The sponsor for the visa was Ms Kanyange's aunt. The central dispute concerned whether Ms Kanyange met the definition of an 'orphan relative' for the purposes of the visa, specifically whether her parents had died.

The Tribunal was required to determine whether the evidence before it, including new DNA information, sufficiently established that Ms Kanyange's parents had died, thereby satisfying the criteria for the Orphan Relative visa. The Tribunal also had to consider whether the familial relationship between Ms Kanyange and her sponsor, as aunt and niece, was consistent with the visa subclass requirements.

In its reasoning, the Tribunal acknowledged the new DNA evidence which traced the genetic links between the sponsor, Ms Kanyange, and her parents. This evidence, alongside other information indicating the parents had died of injuries, satisfied the Tribunal that Ms Kanyange met the definition of an orphan relative. The Tribunal found that the familial relationship was established and that the visa criteria were met.

Consequently, the Tribunal remitted the decision under review.

Orders