Kanyange (Migration)

[2022] AATA 2273

Kanyange (Migration) [2022] AATA 2273 (29 March 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Celine Kanyange

VISA APPLICANT:  Master Jarco Nzomwita

REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)

CASE NUMBER:  2105413

HOME AFFAIRS REFERENCE(S):          F2017/049783

MEMBER:Meredith Jackson

DATE:29 March 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 29 March 2022 at 8:29am

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 half aunt and nephew – 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    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.

3. 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.

4.    The review applicant Celine Kanyange, an Australian citizen by grant, appeared before the Tribunal by telephone from South Africa on 21 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Jarco Nzomwita, his brother Junior Nzomwita and a witness, Jimmy Nzomwita. The Tribunal hearing was conducted with the assistance of interpreters in the Kiswahili, French and English languages.

5.    The review applicant was represented in relation to the review.

6.    In the hearing, the Tribunal liaised with the applicant, through his representative, concerning the overlap and confluence of many aspects of the present matter with those in three related cases, where the visa applicants are the applicant’s brother, Junior Nzomwita and cousins Hyedidia Ishime and Esther Ishimwe and the sponsor is Celine Kanyange. All four applicants in those matters live together in South Africa and have had mutual experiences growing up. While discrete hearings were held for each matter, the applicant and Tribunal each accepted that it was appropriate and practical, and of no 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 concerning 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

1. The review applicant is Celine Kanyange, born in Burundi in 1973, an Australian citizen by 2020 grant who is employed as a day care worker. The visa applicant is Jarco Nzomwita, a Burundian national born in 2007. Ms Kanyange claims Jarco Nzomwita, who is currently seeking asylum in South Africa, is her orphan relative. Since the primary decision was made, the applicant has provided DNA testing results that indicate that the sponsor and the visa applicant are more likely half-aunt and nephew than unrelated.

2. It is not disputed that with the visa application, the applicant provided false documents, a false birth certificate for the applicant and false death certificates for his mother and father. After the Department raised this with the visa applicant, he stated that the documents had been sourced and provided to him by a third party and he had not been aware they were false when he submitted them. He stated in his response that he was seeking to provide the Department with authentic birth and death certificates and had briefed a South African law firm. At the time of this decision, the applicant has not provided genuine birth and death certificates issued by the Zimbabwean government. The sponsor claims that they cannot be provided.

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 (cl 117.221).

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 his identity. The Tribunal is satisfied on the evidence that at the time of application, the visa applicant was aged 9 years. Therefore, at the time of this decision, the applicant is aged 14 years.  Accordingly reg 1.14(a)(i) is met at the time of application and continues to be met at the time of decision.

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 Junior Nzomwita, Hyedidia Ishime and Esther Ishimwe, 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. It is not disputed that false birth and death certificates have been provided in this matter. The Tribunal notes that the Department put this adverse information about the certificates to the applicant, who did not deny they were false. The delegate concluded in the primary decision that the applicant had not provided an original birth certificate issued by relevant authorities in Zimbabwe for the Department to clearly trace the line of relationship between the visa applicant and the sponsor.  The delegate was therefore not satisfied that he had provided sufficient evidence that he is an orphan relative of the sponsor.

4. The Tribunal notes that the 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 tracing genetic links between the sponsor, the visa applicant and his parents.

DNA evidence

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

2. In the present matter, the DNA test results indicate that it is 12,000 times more likely that Celine Kanyange and Jarco Nzomwita are half aunt and nephew rather than unrelated, corresponding to a probability of 99.99205728 per cent, using African population data. The Tribunal is satisfied that as the DNA evidence indicates that the sponsor and applicant are half aunt and nephew rather than unrelated.

3. The Tribunal notes the assumption within the DNA report in the present matter, that Celine Kanyange is the half sibling of the applicant’s mother. The Tribunal has carefully considered the evidence, noting the fake birth certificate purported to have been provided by the Zimbabwean government. The Tribunal notes a Burundi birth certificate for the applicant, issued in 2016 and confirming that his parents are Patrick Nkurunziza and Martine Nzomwita was provided with the visa application and appears to have satisfied South African authorities. There is no suggestion before the Tribunal that the Burundi birth certificate is false. The Burundi certificate with its birth date in 2007, appears to have been issued for the purposes of obtaining an asylum seeker temporary permit for South Africa and was accepted for that purpose by South African authorities.

4. For these reasons, and with due regard to the DNA information described above, the Tribunal is satisfied that the visa applicant is a relative of the review applicant within the meaning of r. 1.03 at the time of application and decision.

5. 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.

2. As discussed earlier, and also relevant to r. 1.14(b), the delegate’s decision and department files in the present matter record that the applicant provided a birth certificate issued by the Republic of Burundi in 2016, indicating that he was born in Tanzania on 24 September 2007. He also provided a false birth certificate, purported to have been issued by the Zimbabwean Government, showing he was born in Murehwa, Zimbabwe in 2007. The applicant at the time of providing the false birth certificate, also provided false death certificates for his parents Patrick Nkurunziza and Martine Nzomwita that were purported to have been issued by Zimbabwean authorities.

3. The primary decision records that each of the certificates from Zimbabwe was false. On 30 October 2020, the Department wrote to the applicant concerning the adverse information about the 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.”

4. As discussed earlier, the death certificates cannot be relied upon as evidence of the death of the applicant’s parents, however the Tribunal notes that the (false) death certificates state that the parents died on 10 May 2010 and 16 June 2010 respectively, six days apart. The significance of this will be returned to shortly.

5. At the hearing, the Tribunal asked the review applicant 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, the applicant indicated that the law firm had been unable to secure the birth and death certificates. Following a request for information from the Tribunal of 2 March 2022, the sponsor responded stating that she was unable to provide valid birth and death certificates in this and the related matters. At the time of this decision, no further birth or death certificates have been provided.

1. The question for the Tribunal is whether the applicant cannot be cared for by his parents because they are dead, permanently incapacitated or of unknown whereabouts. The applicant and sponsor claim that the applicant’s parents (who are also the parents of Junior Nzomwita) were killed in a tragic car accident in Zimbabwe in May 2010. The Tribunal heard evidence at the hearing from a witness, Jimmy Nzomwita, who claims to have been present in the immediate aftermath of the accident. He confirmed that the deaths of Jarco Nzomwita’s parents Patrick Nkurunziza and Martine Nzomwita occurred several days apart. Jimmy Nzomwita stated to the Tribunal: “They were coming back from a wedding, the children’s father was driving the car, Martine was the passenger, they were run into by a bus,” he said. “The bus hit them on the driver’s side of the vehicle and the car rolled. I was called to the scene of the accident several minutes later. Patrick had been killed instantly; the ambulance was called but he had died; Martine died in hospital two weeks later.”

1. Jimmy Nzomwita stated that he was called to the accident because he knew the family, although he was not living with them at the time. He remembers that it was in 2010 because he left Zimbabwe several months later for Mozambique where he now lives, he stated. He was aware soon after that the children had gone to live with a cousin, Jean-Luc (Nzomwita), but could not remember “the wife’s name”. He stated that from time to time before he left for Mozambique, he had spoken with Jean-Luc about the children. After he left, there was “not really much contact”. He lost touch when he got to Mozambique in 2011, but after 2 or 3 years, he stated, he tried again to contact Jean-Luc but his calls were unanswered and he never understood what had happened to Jean-Luc or his wife, where they had gone. He stated that his next contact with the matter was with the sponsor, Celine Kanyange. “She knew I was present at the accident (involving the applicant’s parents) and asked me if I could talk to her lawyer”. The Tribunal asked Jimmy Nzomwita whether he knew where the children are now. He responded: “She told me the children are living in South Africa, and they are with Jean-Luc’s children. But I am not sure who is supporting them.”

1. The sponsor claims that as young orphans, the applicant and his brother Junior were placed with her brother, Jean-Luc Nzomwita and his wife, Esperance Uwimana (hereafter the former carers). They no longer provide care for Jarco Nzomwita (and the remaining children) because they are missing and presumed dead.

2. In a Statutory Declaration dated 23 May 2017, Celine Kanyange stated that her last understanding regarding the whereabouts of the former carers was given to her by her friend Rose, who lives in Pretoria. The sponsor states she was looking to find her brother, and unaware at the time that her sister was dead. Rose was a friend of the pair and had attended their wedding in Durban in 2014. Rose found her brother Jean Luc and his wife and put them in touch. Ms Kanyange claims she then spoke to Jean Luc, who informed her of the deaths of her half-sister Martine and brother in law Patrick. She claims he told her that he had care and custody of the two children and that he also cared for twin children of Ms Kanyange, Delou and James Uwayo. In 2015, she states, communication with her brother abruptly ceased and she was unable to contact him from then on. Her children, eventually 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. The sponsor claims they have not been located since. Ms Kanyange states that she firmly believes the three were killed, as have been many other refugees from other parts of Africa who are seeking refuge in South Africa, because of their unwelcome presence. She states the four children (the applicant and other three applicants of the related cases) are living at the same risk of being killed randomly in South Africa, where they have no carer supervision.

3. Jarco Nzomwita, now aged 14, gave some evidence about his parents. He stated in the hearing that he remembered little of their deaths in 2010. He also provided a Statutory Declaration to the Tribunal, wherein he states that he thinks he was 3 years of age when his parents died; he had been told it was in an accident. He states that he was cared for by (the former carers) until they went missing. He states that he recalled that the children returned from church on the day they went missing; when he was aged 7. His brother, Junior Nzomwita, aged 17, gave evidence in support of that claim. Junior Nzomwita stated the children had left to go to church and when they came back they found the door open, and they have not seen (the former carers) since.

4. In further support of the claim, the sponsor and review applicant provided a Statutory Declaration from Delou Uwayo, a shop assistant of Doolandella, Queensland, referred to earlier as one of Ms Kanyange’s South African-based children who alerted the sponsor to the disappearance of the former carers. She declares that the former carers are missing. She states that she resided with them after her mother left the family when she and her brother were six, until 2018 where she lived with her cousins. She stated that on 27 March 2015 the children attended church and when they returned shortly after 6pm, Jean Luc and Esperance were not at home. All efforts to find them, which she describes in some detail, yielded no results. She and the others did not go to the police about it as they did not trust the authorities and also had no experience of doing so in South Africa. Ms Uwayo gave convincing evidence in a related matter that the children are orphans and were deeply distressed when she and her brother left them in South Africa in 2018 to be reunited with their mother in Australia.

1. The sponsor provided evidence that she had initiated tracing investigations by the Australian Red Cross Restoring Family Links (RFL) service in search of Jean Luc Nzomwita, his wife Esperance Uwimana and their son Daniel Nzomwita. 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 RFL service had been involved in tracing the family since May 2021.

Can the applicant not be cared for by either parent?

1. The Tribunal has carefully considered the information provided by the sponsor, visa applicant and witnesses in this matter with regard to whether 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.

2. The Tribunal has carefully weighed the sponsor’s credibility and the evidence about whether the applicant’s parents (and former carers) may be presumed dead. The common law presumption of death is a rebuttable legal inference that in certain circumstances, after an absence of seven years, a person may be presumed dead: Axon v Axon (1937) 59 CLR 395. Where a claim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include whether other persons were likely to have received contact from the person presumed dead; what inquiries were made; the circumstances in which the person in question was last known to be alive; and any other relevant factors.

3. In the present matter, there are no genuine death certificates before the Tribunal for the applicant’s parents, despite the efforts made to produce valid documentation in this regard. The Tribunal accepts that the DNA analysis and report by the Australian provider Identilab, whose report draws a clear biological link between the sponsor and the visa applicant and it bears emphasis, between the remaining three children of related cases before the Tribunal, as concluded earlier in these reasons. However the requirement of the Regulations is that the applicant cannot be cared for by either parent, and the DNA analysis does not make that link. There are no valid death certificates or a court conclusion about the fate of the applicant’s parents, and the sponsor has stated that she is unable to provide a death certificate for either of them.

The hearing

1. The hearing was conducted with some difficulty given that the sponsor was in South Africa at the time and spoke sparsely by telephone. The visa applicant Jarco Nzomwita is a 14 year-old who spoke sparsely and was most forthcoming when indicating he wants to be a doctor. The clearest evidence was given by witness Jimmy Nzomwita. A French-English interpreter was used to assist him to provide his evidence. He spoke clearly and candidly about the car accident that he claims took the lives of Jarco Nzomwita’s parents and which he attended within minutes of its occurrence. It is noteworthy that when the Tribunal, with the aid of the interpreter, questioned him about the whereabouts of the former carers, he stated he did not know what happened to them. The Tribunal considers that this was a somewhat telling response: had he been less than a genuine witness, he may have offered the same narrative as the visa applicant and sponsor about the former carers going missing, and he did not do so when questioned, instead he indicated he did not know where they were and implied they may still be caring for the children.

2. It was challenging in the circumstances of the hearing to wholly assess Ms Kanyange as a credible witness when she spoke in such a limited way. There are inconsistencies and consistencies in her various statements. Importantly, she has claimed from the outset that she is the aunt of the applicant (and other children of related cases) and was subsequently confirmed to be so by a reputable Australian DNA provider. The Tribunal accepts that claim, which is supported by sworn statements and some receipts for funds transfer, that she has provided support to the visa applicant and the other three children since the former carers disappeared, and it is clear that for five years she has pursued her mission to bring the children to Australia to unite them and to lower the overall maintenance costs for her large family.

3. On the other hand, the sponsor claimed in the hearing that she already cares for seven children of her own; and, as she made clear during an emotional but cogent statement to the Tribunal, she is struggling to make ends meet in two countries with two separate dwellings and expense sets to fund, on her modest wages. She became highly emotional when describing her circumstances as dire. In a later hearing in a related case, Ms Kanyange indicated that she was motivated to bring the children to Australia by their circumstances. Her daughter Ms Uwayo also gave evidence, convincingly, that she considers it was heartbreaking for the remaining children when she and her brother left them for Australia, and she gave the impression that she is an important driving element in their reunification.

4. The Tribunal has before it consistent evidence from the sponsor; the visa applicant, whom it notes is a minor; his brother, also a minor; and two prominent witnesses concerning the claimed events of 2010, that is, the car accident said to have claimed the lives of Martine Nzomwita and Patrick Nkurunziza. They consistently claimed the accident happened and killed both parents in 2010, although the Tribunal is aware the sponsor did not understand this fact first hand.

5. Having weighed all elements and evidence, the Tribunal is inclined to accept, given the absence of contact, the consistent contributions of the affected parties in the hearing, the witness testimonies and the Statutory Declarations, that the relevant deaths occurred in 2010 as described. It bears emphasis some 12 years have elapsed since the visa applicant’s parents were last seen or heard from. On balance, the Tribunal is satisfied that the applicant’s parents died of injuries resulting from a car accident, as claimed.

6. The Tribunal, having carefully considered the evidence regarding the fate of the applicant’s parents, is on balance, inclined towards his claim that his parents died in the car accident of 2010. The Tribunal accordingly, is satisfied the applicant cannot be cared for by either parent because his parents are dead.

7. 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.

8. 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 Jarco Nzomwita’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 therefore satisfies cl 117.211 of the Regulations and continues to satisfy the criterion at the time of this decision (cl 117.221.)

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

3. For completeness and with regard to the scope of this review, the Tribunal has not made a finding on the provision of false documents with the visa application because to do so may deprive the applicant of a tier of review.

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.

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.