Kanyange (Migration) - [2022] AATA 2277

Kanyange (Migration) [2022] AATA 2277 (29 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Celine Kanyange
VISA APPLICANT:  Master Junior Nzomwita
REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)
CASE NUMBER:  2105411
HOME AFFAIRS REFERENCE(S):          F2017/049782
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 8:12am

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

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).
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.
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 r.1.14.
The review applicant 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 Junior Nzomwita, from his brother, Jarco Nzomwita, and from witness Jimmy Nzomwita. The Tribunal hearing was conducted with the assistance of interpreters in the Kiswahili, French and English languages.
The review applicant was represented in relation to the review.
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, Jarco Nzomwita and cousins Hyedidia Ishime and Esther Ishimwe and the…

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.

Continue reading Kanyange (Migration)

Details

AGLC: Kanyange (Migration) [2022] AATA 2277
Case: [2022] AATA 2277
Decision Date: 29 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Kanyange (Migration), involving a visa applicant seeking an Orphan Relative (Class AH) visa, subclass 117. The dispute centred on whether the applicant qualified as an "orphan relative" of an Australian relative, as defined by the Migration Regulations. The Tribunal was tasked with determining if the applicant met the criteria for this visa subclass.

The primary legal issue before the Tribunal was to ascertain whether the visa applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision, as required by clause 117.211 and clause 117.221 of the Migration Regulations. This involved interpreting the definition of "orphan relative" under regulation 1.14 and "Australian relative" under clause 117.111, as well as the definition of "relative" under regulation 1.03. Specifically, the Tribunal had to be satisfied that the applicant had not turned 18, did not have a spouse or de facto partner, and was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen.

The Tribunal's reasoning focused on the evidence presented, including new DNA information that established a genetic link between the sponsor and the applicant, confirming they were half aunt and nephew. The Tribunal was satisfied that the applicant's parents had died of injuries, fulfilling the core requirement of being an orphan. Furthermore, the Tribunal found that the applicant met the age and marital status requirements of regulation 1.14 at both the time of application and the time of the decision. Consequently, the Tribunal concluded that the applicant satisfied the criteria for an Orphan Relative visa.

The Tribunal ordered that the decision under review be remitted for reconsideration, indicating that the applicant had met the necessary criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative. 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. ‘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. 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. 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. 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. 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. 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 Jarco 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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