Kanyange (Migration) - [2022] AATA 2273

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

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…

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 2273
Case: [2022] AATA 2273
Decision Date: 29 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) considered the application of Kanyange for a Subclass 117 (Orphan Relative) visa. The sponsor, who was the applicant's maternal aunt, sought to establish that the applicant met the definition of an "orphan relative" for the purposes of the visa. The primary dispute concerned whether the applicant's parents had died and whether the sponsor was therefore eligible to sponsor him.

The Tribunal was required to determine whether the applicant qualified as an "orphan relative" under the Migration Regulations 1994 (Cth). This involved assessing whether the applicant's parents were deceased and whether the sponsor was a relative of the applicant who could satisfy the criteria for sponsorship. A key issue was the admissibility and weight of new evidence, specifically DNA information, presented to establish the genetic relationship between the sponsor, the applicant, and the applicant's parents.

The Tribunal found that the DNA evidence, which traced genetic links between the sponsor and the applicant and his parents, established that the sponsor was the applicant's half aunt and the applicant was her nephew. The Tribunal was satisfied, based on this evidence and other information, that the applicant's parents had died from injuries sustained. Consequently, the Tribunal concluded that the applicant met the definition of an "orphan relative" as defined in the Migration Regulations. The decision under review was remitted.

Orders