Lubela (Migration)

[2019] AATA 1367

Lubela (Migration) [2019] AATA 1367 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Albert Sita Lubela

VISA APPLICANTS:  Mr Sita Lusivika Guy Ndonda
Ms Wumba Blessing Ndonda
Mr Lubela Albert Ndonda
Ms Sita Lubela Kethya Ndonda

CASE NUMBER:  1720054

DIBP REFERENCE(S):  OSF2015/075571

MEMBER:David Barker

DATE:8 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 08 January 2019 at 9:25am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – review applicant not a close relative of visa applicants – lack of evidence establishing visa applicants’ parents deceased – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 369
Migration Regulations 1994, r 1.14, Schedule 2, cl 117.211

CASES
Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 June 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 14 October 2015. 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 (the Regulations). The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was an orphan relative of an Australian relative. The delegate was also not satisfied that the review applicant was a close relative of the visa applicants and as a consequence did not satisfy the definition of an orphan relative in reg.1.14(a)(iii). The delegate was also not satisfied that the visa applicants’ parents were deceased and therefore r.1.14(b) was not met.

4. The review applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s current wife and from Mr Sita Lusivika Guy Ndonda (the applicant).  The Tribunal hearing was conducted with the assistance of an interpreter in the Lingala and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

6. The review applicant presented the Tribunal with copies of the delegate’s decision records. These indicate that the visa applicants are citizens of the Democratic Republic of the Congo.  Sita Lusivika Guy (DIBP File 2015075571) claims to have been born on 15 September 1998, Sita Lubela Kethya (DIBP File 2015075572) claims to have been born on 28 May 2002, Lubela Albert (DIBP File 2015075573) claims to have been born on 30 November 2004 and Wumba Blessing (DIBP File 2015075574) claims to have been born on 1 May 2006. They claim their mother, Motondo Sita Lubela, died following the birth of Wumba Blessing in 2006, as a result of illness (haemorrhage) and that their father, Jean-Marie Ndonda Ndombasi, died in 2012 while serving with the army of the Democratic Republic of the Congo.

7. The review applicant is the sponsor of the visa applicants. He was born in Congo and is currently 68 years old. He first entered Australia in March 2002 on a humanitarian visa and was subsequently granted Australian citizenship in March 2006. He has previously sponsored his current spouse for a subclass 309 Partner visa. The review applicant claims to be the maternal grandfather of the visa applicants.

8. The visa applicants provided a number of documents to the Department in support of the applications, including:

   ·An Officially Recorded Document on a Matter of Common Knowledge, replacing a Birth Certificate, issued by the Democratic Republic of the Congo, District of Lukaya, Territory of Kasangulu registry Office, regarding Matondo Sita Lubela, dated 30 August 2014;

   • An Officially Recorded Document on a Matter of Common Knowledge, replacing a Birth Certificate, issued by the Democratic Republic of the Congo, District of Lukaya, Territory of Kasangulu registry Office, regarding Ndonda Sita Lusivikia Guy, dated 30 August 2014;
   • An Officially Recorded Document on a Matter of Common Knowledge, replacing a Birth Certificate, issued by the Democratic Republic of the Congo, District of Lukaya, Territory of Kasangulu registry Office, regarding Ndonda Sita Lubela Kethya, dated 30 August 2014;
   • An Officially Recorded Document on a Matter of Common Knowledge, replacing a Birth Certificate, issued by the Democratic Republic of the Congo, District of Lukaya, Territory of Kasangulu registry Office, regarding Ndonda Lubela Albert, dated 30 August 2014;
   • An Officially Recorded Document on a Matter of Common Knowledge, replacing a Birth Certificate, issued by the Democratic Republic of the Congo, District of Lukaya, Territory of Kasangulu registry Office, regarding Ndonda Wumba Blessing, dated 30 August 2014;
   • A Democratic Republic of the Congo Courts Kasangulu Magistrates Court – Application for a Guardianship Judgement, dated 22 August 2014;

   ·A statutory declaration, signed by the review applicant, dated 20 September 2015.

9. The delegate was not satisfied that the review applicant was a close relative of the visa applicants and thereby did not satisfy the definition of an Orphan Relative in r.1.14(a)(iii). The delegate was also not satisfied that the visa applicants’ parents were deceased and therefore that they cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The delegate found that the definition of an orphan relative in r.1.14(b) was not met. Accordingly, the delegate found that the applicants did not meet the criteria in cl.117.211 for the grant of the visa.

10. On 4 September 2017, the Tribunal received documents from the review applicant, including:

    ·Centrelink income statement, dated 28 August 2017;

    ·CBA account records;

    ·NSW Government Family & Community Services – rent subsidy review notice, dated 21 June 2017;

    ·A statutory declaration from the review applicant, dated 29 August 2017.

    ·Kinshasa Matete Magistrates Court, the Democratic Republic of the Congo, supplementary judgement in lieu of a death certificate for Matondo Sita Lubela, dated 18 July 2017.

    ·A Democratic Republic of the Congo Death Certificate, regarding Matondo Sita Lubela, dated 28 July 2017.

    ·Kinshasa Matete Magistrates Court, the Democratic Republic of the Congo, supplementary judgement in lieu of a death certificate for Jean-Marie Ndonda, dated 18 July 2017.

    • A Democratic Republic of the Congo Death Certificate, regarding Jean-Marie Ndonda, dated 28 July 2017.

11. On 20 October 2017, the Tribunal received further documentary evidence from the review applicant, including:

    ·a statutory declaration from Ms Helene Nlandu Malonda, dated 8 October 2017.

    ·a birth certificate regarding Matondo Sita Lubela, dated 18 September 2017, issued by Kinshasa Matete Magistrates Court, the Democratic Republic of the Congo.

    ·Kinshasa Matete Magistrates Court, the Democratic Republic of the Congo, supplementary judgement in lieu of a birth certificate for Matondo Sita Lubela, dated 18 September 2017.

    ·financial remittance receipts.

12. On the day of the hearing the review applicant provided the Tribunal with imaging results from radiology scans of his wife’s spine and shoulders.

    The Hearing

    Evidence of the review applicant

13. The review applicant told the Tribunal that he was not happy with the delegate’s decision to refuse the visa applications as he is responsible for the visa applicants because they don’t have parents and he has to financially support them, which is a strain on his own limited finances.

14. In relation to the delegate’s concern as to whether the visa applicants’ parents are deceased, the review applicant told the Tribunal that his daughter, the mother of the visa applicants died at the time of the birth of her youngest child, Ndonda Wumba Blessing. 

15. In relation to why death certificates for Matondo Sita Lubela and Jean-Marie Ndonda, the parents of the visa applicants,  are not dated at or around the time of their deaths and are rather documents issued  in July 2017, the review applicant gave evidence that death certificates were issued in the aftermath of the deaths of both Matondo Sita Lubela and Jean-Marie Ndonda, but as the visa applicants are only children, they did not keep the certificates and he was not able to get these documents from the visa applicants.  He said that he had to have new certificates sent to him from the Democratic Republic of the Congo when he was preparing for the review hearing.

16. In relation to documentation regarding the death of the visa applicant’s father, Jean-Marie Ndonda.  The Tribunal asked the review applicant why, given Jean-Marie Ndonda is reported to have been an officer in the army of the Democratic Republic of the Congo, would there have been no records of his death, given it is reported to have occurred while he was on active service in a conflict zone. In response to this question the review applicant gave evidence that there was documentation from the army of the Democratic Republic of the Congo, but as he was already in Australia at the time Jean-Marie Ndonda was killed in 2012, he could not contact the Democratic Republic of the Congo military authorities and request copies of these documents.

17. The Tribunal noted that there was no clear indication as to the date on which Jean-Marie Ndonda was allegedly killed, on the Kinshasa Matete Magistrates Court, the Democratic Republic of the Congo, supplementary judgement in lieu of a death certificate for Jean-Marie Ndonda, dated 18 July 2017, beyond a reference to it occurring in ‘2012’. In response to this comment the review applicant told the Tribunal that Jean-Marie Ndonda was in the army of the Democratic Republic of the Congo and that he was killed whilst fighting M23 rebels in Bukavu.  He initially said Jean-Marie Ndonda was killed in June 2012 and at a later point said June was when Jean-Marie Ndonda went to fight the rebels and that he is unsure of the specific date on which Jean-Marie Ndonda was killed.  He said the visa applicants did not receive word of their father’s death until November 2012.  The review applicant gave evidence that when he became aware of the death of Jean-Marie Ndonda he sent his wife to stay with the visa applicants, as there was no one to look after them.  He said his wife looked after the children between 2012 and 2016.

18. The Tribunal invited comment from the review applicant in relation to the concern raised by the delegate that he had not declared the visa applicants’ mother, Matondo Sita Lubela, as one of his children [details deleted] during his migration to Australia in 2002. In response to this invitation, the review applicant explained that at the time of the birth of Matondo Sita Lubela in August 1975, her biological mother was not the woman to whom he was married.  He said the woman to whom he was at that time married did not like Matondo Sita Lubela and would not accept her as part of their family.  He said this was why he did not declare Matondo Sita Lubela on his visa application forms.

19. The review applicant conceded that the visa application forms he filled out in 2002 asked him to declare all of his children.  He said however that he could not do so for Matondo Sita Lubela and another daughter, as the woman he was married to at that time did not like these children who were not her biological children and that this was why he did not declare Matondo Sita Lubela and the other daughter on his visa application forms.

20. The review applicant conceded that at the time of his visa application in 2002, in which he included as secondary applicants the woman he was at that time married to and their five children, but their applications were refused because his wife at the time was actually by the time the visa was processed in a relationship with another man.  He said that when he learned of her relationship with this other man he cancelled the visa applications for his previous wife and their children.  He said these circumstances are also why he is now married to his current wife, Ms Helene Nlandu Malonda.

21. The Tribunal noted that the Officially Recorded Document on a Matter of Common Knowledge, Replacing a Birth Certificate, issued by the Democratic Republic of the Congo, District of Lukaya, Territory of Kasangulu registry Office, regarding Ndonda Sita Lusivikia Guy, dated 30 August 2014, which was provided with the visa application states Matondo Sita Lubela was born in Kinshasa on 24 November 1974, whereas the birth certificate regarding Matondo Sita Lubela, dated 18 September 2017, issued by Kinshasa Matete Magistrates Court, the Democratic Republic of the Congo states Matondo Sita Lubela was born in Kimpese on 1 August 1975. The Tribunal noted there are inconsistencies in these documents.  In response to this comment the review applicant stated that he is the father of Matondo Sita Lubela and that he can confirm she was born at the main hospital in Kimpese on 1 August 1975.

22. The Tribunal noted that in a statutory declaration, dated 22 September 2015, which he provided with the visa applications, the review applicant claimed that Matondo Sita Lubela died at the time of the birth of Ndonda Wumba Blessing, which is elsewhere identified as 1 May 2006, whereas the Democratic Republic of the Congo Death Certificate regarding Matondo Sita Lubela, dated 28 July 2017, provided with the review application states she died on 30 November 2006. In response to this comment the review applicant stated that Matondo Sita Lubela gave birth to Ndonda Wumba Blessing on 1 May 2006 and that he forgot her mother passed away in November of that year.  He said she did not recover from the birth process and was ill until she passed away. He said he was confused at that time because of what had occurred.  He said the birth took place at the hospital in Kinshasa and that Matondo Sita Lubela was at home when she passed away.

23. In response to a question from the Tribunal regarding the current circumstances of the visa applicants, the review applicant said they are in the care of his wife’s cousin. He said his wife has two cousins, Junior and Roderick. Junior is the elder and he had initial care of the visa applicants, but when he left the Democratic Republic of the Congo to reside in Angola, his younger brother, Roderick assumed care responsibility for the visa applicants. He said the visa applicants are all undertaking study of some type.

24. In response to a question from the Tribunal, the review applicant confirmed he claimed in a statutory declaration, dated 29 August 2017 that the visa applicants were in the care of his wife’s elderly mother.  He initially said that when his wife was about to come to Australia, she took the children from Kinshasa to Boma to stay with her mother.  The Tribunal noted that the statutory declaration of his wife, Ms Helene Nlandu Malonda, dated 18 October 2017, which was provided with the review application, states that when she came to Australia in August 2016, she left the visa applicants in the care of her cousin, Pake Yeke Junior and that he put them in the care of his brother, Niati Niati Roderick when he in turn went to Angola.  The review applicant then gave evidence his wife’s mother could not look after the children because she is elderly.

25. In response to an invitation to comment on the financial remittance receipts provided with the review application, the review applicant said he financially supports the visa applicants and that this is difficult for him, as his only income comes from a Centrelink age pension.

26. The Tribunal invited the review applicant to comment on a concern as to the reliability of the evidence in support of the visa application because of the significant inconsistencies in the oral evidence he has provided and written evidence provided with the visa and review applications in relation to the care arrangements of the visa applicants and details of the claimed birth and deaths of their parents.  The review applicant indicated he had no further comment that he wished to make with regard to any such concerns.

    Evidence of Mrs Malonda

27. In relation to her involvement in caring for the visa applicants, Mrs Malonda said she started looking after them in 2012, subsequent to a request from the review applicant.  She said that after their father died the children were staying by themselves in Kinshasa.  Mrs Malonda said that after she became involved in their care she took them to Boma, where they all stayed with her elderly mother.  She said that she put the children into school, but that she was not able to bring any evidence of their time with her, such as school records, photographs or other documents, to Australia.  She did not provide a clear reason as to why this was the case.

28. Mrs Malonda gave evidence she had some contact with the visa applicants when their mother was alive, prior to her death in 2006, but then no contact until after their father’s death in 2012.   She said the visa applicants are at the present time in the care of her cousin Roderick and that before that another of her cousins, Junior, had looked after them.

29. The Tribunal asked Mrs Malonda about the history of her relationship with the review applicant.  She said their relationship began in 1987 and then resumed in 2007 and that they married in 2014.   She confirmed they had been in a relationship since 1987, but that 2007 was when the review applicant paid a dowry and they commenced a committed relationship according to their cultural traditions.

30. The Tribunal put to Mrs Malonda that in a statutory declaration the review applicant prepared in 2015 he claimed he met her in 2007 and that if this was a truthful claim, this gives rise to a concern regarding the reliability of her evidence as to having contact with the visa applicant’s mother prior to her death in 2006.  Mrs Malonda responded to this concern by saying there was no confusion and that 2007 was when the review applicant came to meet her parents in the Democratic Republic of the Congo to confirm everything about their relationship. 

31. In response to a question from the Tribunal as to when she and the review applicant spent time with the visa applicants and their mother, Mrs Malonda changed her evidence and said she did not have contact with the visa applicants’ mother. She said she only met the visa applicants after 2007, which was after the death of their mother.  In response to a further question from the Tribunal, Mrs Malonda gave evidence that she did not meet the visa applicants until 2012.

32. Mrs Malonda gave evidence that she is concerned about the visa applicants, as their current situation is not good and she wants them to be able to come to Australia.  She said that she is not well and that the medical evidence regarding her  [condition] was provided to the Tribunal to demonstrate why she cannot travel to the Democratic Republic of the Congo to see the visa applicants.

    Response of the review applicant to the evidence from Mrs Malonda

33. The review applicant indicated he wished to respond to Mrs Malonda’s evidence about their relationship.  He said they grew up in the same part of the Democratic Republic of the Congo and that they started a relationship in 1987.  He said that after he became aware of his previous wife’s extra-marital affair in 2007 he asked his family in the Democratic Republic of the Congo to make enquiries about Mrs Malonda’s circumstances.  He said that he got in contact with her upon hearing that she was not partnered to a man and that they then rekindled their relationship.  He said he travelled to the Democratic Republic of the Congo and discussed the situation with her parents and that in 2014 they were formally married according to both cultural and religious traditions.

    Evidence of the first-named visa applicant, Mr Sita Lusivika Guy Ndonda (the eldest)

1. Mr Ndonda gave evidence the review applicant is his maternal grandfather.  He said his father was a colonel in the army of the Democratic Republic of the Congo, who was killed when he was sent to the eastern part of their country to fight rebels.  Mr Ndonda said that he and his siblings did not find out about their father’s death until November 2012, which was about three or four months after he was killed by rebels.

2. Mr Ndonda said he and his siblings then remained in the military camp where they lived until they were picked up by their grandma.  He said their grandma was alone when she came to pick them up.  He said she took them to stay with her in Boma and that they then stayed with her for between nine and 11 months and that no one else helped her look after them.  He said that after that they were looked after by Junior for a couple of months, before he went to Angola and that since then they have been looked after by Roderick, who is Junior’s younger brother.  Mr Ndonda said Roderick has looked after them since August 2016.  Mr Ndonda then said they remained in the care of their grandma until August 2016.

   Response of the review applicant to the evidence from the first-named visa applicant

3. The review applicant indicated he had no comment to make with respect to Mr Ndonda’s evidence.

   Particulars of information put to the applicant pursuant to s.359A of the Act

4. The oral evidence provided at the hearing and other documentary evidence provided with the visa and review applications contained a range of inconsistencies and discrepancies. Those discrepancies not raised in the decision record were put to the review applicant after the hearing in accordance with s.359A of the Act. The review applicant was asked to respond by 6 September 2018. 

5. The information put to the applicant in the s.359A letter was as follows:

   During the hearing Ms Malonda gave inconsistent evidence as to when she first met the visa applicants, which gives rise to concern about the reliability of her evidence.  She initially said you both had contact with the children whilst their mother was alive but at a later point in the hearing she conceded she had not met the children until after the reported death of their father in 2012.  Given the reported death of the children’s mother in 2006 there is a major inconsistency in the evidence provided by Ms Malonda.

   Ms Malonda’s claim that you both met the visa applicants when their mother was alive is also not consistent with your claim that whilst you have known each other since 1987, it was not until 2017 that you asked your family to make contact with Ms Malonda to find out if she was in a relationship or whether she was potentially available to form a relationship with you.

   This information is relevant because the inconsistencies in Ms Malonda’s evidence gives rise to a concern she is not a reliable witness, which affects the weight that the Tribunal may place on her evidence.

   During the hearing Mr Sita Lusivika Guy Ndonda gave evidence his ‘Grandma’ came by herself, sometime after they found out in November 2012 that their father had been killed, to the military camp where he and his siblings were staying.   Mr Sita Lusivika Guy Ndonda gave evidence that his “Grandma’ picked he and his siblings up and took them to live with her.  He said they were looked after by her for between 9 and 11 months and that no one assisted her to look after them.  He said they then went to stay with junior for a couple of months, before junior went to Angola.  Mr Sita Lusivika Guy Ndonda said Junior asked his younger brother to look after them and that they have stayed with Junior’s younger brother since that time.  He said Junior’s younger brother has looked after them since August 2016 and that they were looked after by their ‘Grandma’ until August 2016.

   This information is relevant because there are inconsistencies and also the time frames described by Mr Sita Lusivika Guy Ndonda do not add up.  He claimed he and his siblings went into the care of his ‘Grandma’ in later 2012 or early 2013 and stayed with her for up to 9 months.  He said that he and his siblings were then cared for by Junior for only a few months before Junior’s younger brother started looking after them.  This would indicate they started living with Junior’s younger brother sometime in 2014, not after 2016, as he has also claimed.  It does not also appear possible that Mr Sita Lusivika Guy Ndonda and his siblings were looked after by their ‘Grandma’ until August 2016, as he has also claimed.

   This information is relevant because it raises concern as to whether the evidence provided by Mr Sita Lusivika Guy Ndonda can be relied on as truthful or accurate information.

   Mr Sita Lusivika Guy Ndonda’s claim that no one else lived with his Grandma whilst she looked after he and his siblings and that since then they have only been in the care of Junior and Junior’s younger brother is also not consistent with the claim in Ms Malonda’s declaration, dated 18 October 2017, that  she looked after Mr Sita Lusivika Guy Ndonda and his siblings following the death of their father in 2012 and that when she came to Australia in August 2016 she arranged for her cousin Yeka Paku Junior to temporarily care for them.  It is also not consistent the with the claim in the statutory declaration you signed on 29 August 2017, in which you declare the visa applicants were at that time in the care of Ms Malonda’s mother.

   During the hearing you gave evidence that death certificates were made by the authorities at the time of the death of the visa applicant’s parents, but as these were in the possession of the visa applicants in the Democratic Republic of the Congo and you were in Australia, you were not able to access them.  Whereas, the Kinshasa Matete Magistrates Court in the Democratic Republic of the Congo, Supplementary Judgements in lieu of death certificates for Matondo Sita Lubela and Jean-Marie Ndonda, which are both dated 18 July 2017, both clearly state “Indeed, as a result of ignorance of the law, this death was not reported to the relevant registrar of Births, deaths and Marriages in the form and period provided for by law”

   This information is relevant because it raises concern that either the oral evidence you provided during the hearing was not accurate or truthful, or else the basis on which the death certificates for the visa applicant’s parents were sought from the authorities in the Democratic Republic of the Congo in July 2017 was not accurate or truthful.

   The overall level of inconsistency between information provided by you, Ms Malonda and Mr Sita Lusivika Guy Ndonda gives rise to a general concern about the reliability of this evidence and the whether it can be regarded as supporting the claims in the visa applications.

   This may result in the Tribunal not accepting the claims as to your relationship with the visa applicants and the evidence as to whether the parents of the visa applicants are deceased.  If the Tribunal does not find you are an Australian relative of the visa applicants it will affirm the decision to refuse the visa applications.

6. On 3 September 2018 the Tribunal received a written response from the review applicant, which stated:

   Comment concerning Ms. Malonda oral evidence.

   1.Ms. Malonda and I, we knew each other since 1987 but we did not start having relationship in 1987. It was in 1987 that Ms. Malonda and her family moved to live in Boma in same street where my family lived.

   2.Ms. Malonda was my girlfriend for about few weeks only when I was about to travel to Australia in 2002; and I was already married to my ex-wife Marttie Nsimba Muanda. Ms. Malonda and I, we lost contact when I came to Australia. We did not talk since I arrived in Australia in 2002 until in 2007 when I asked my family to make contact with her. We started relationship again in 2007.

   3.Ms. Malonda did not meet the visa applicants when their mother was alive. Ms. Malonda met the visa applicants' mother personally in Boma when she was alive but not the visa applicants. Ms. Malonda knew that the visa applicants' mother Matondo was my daughter.

   4.Me, being the grandfather of the visa applicants, I had contact with the visa applicants' mother because the visa applicants' mother was my daughter. I was in contact with the visa applicants' parents when they were alive. I used to talk to the visa applicants' parents from . Australia on the phone.

   5.If Ms. Malonda initially gave oral evidence that we met the visa applicants when their mother was alive this is because Ms. Malonda used to see occasionally the visa applicants and their mother when she was alive during their vacation in Boma. But Ms. Malonda did not have any contact with the visa applicants when their mother was alive. Ms. Malonda did not even know the names of the visa applicants when their mother was alive.

   6.However Ms. Malonda had her first contact with the visa applicants only after the reported death of the visa applicants' father in late 2012.

   7.If Ms. Malonda claimed that she met the visa applicants after the death of the visa

   applicants' father in late 2012, this oral evidence is correct because Ms. Malonda had first personal contact with the visa applicants in their home in Camp Badiadingi after the death of the visa applicants' father.

   8.When the visa applicants' parents were both alive, Ms. Malonda did not have contact with the visa applicants even though Ms. Malonda knew the visa applicants' mother.

   9.When the visa applicants' father died in November 2012, Malonda and I, we were already into relationship. Ms. Malonda stayed and looked after the visa applicants from the death of their father in December 2012 to August 2016 when Ms. Malonda travelled to Australia.

   10.The claims that it was in 2017 that I asked my family members to contact Ms. Malonda, is not accurate. The interpreter did not accurately interpret what we said.

   11.I did not ask my family to contact Ms. Malonda in 2017. I asked, my family to make contact with Ms. Malonda in 2007. We met in 2007 during my visit in Boma. Malonda and I, we got married in July 2014. Ms. Malonda has been living with me in Australia since August 2016.

   12.How could Malonda or I, give oral evidence that my family contacted her in 2017 when in fact we are already married since July 2014.

   13.My wife Malonda is a reliable witness. Ms. Malonda is a God-fearing woman. She is of good character and has Christian values. She does not lie. In 1 John 3:8 the bible says" He who sins is of the devil, for the devil has sinned from the beginning. Ms. Malonda cannot lie because if she lies this is a sin.

   Comment concerning ALBERT SITA LUBELA's oral evidence

   14.The visa applicants' mother Matondo was my daughter. The visa applicants are my Grandchildren. When I was in Congo before I travelled to Australia I did have contact with the visa applicants' parents. I knew my grandson Sita Lusivika Guy Ndonda. I met Guy Ndonda because he was born before I travelled to Australia. I met the visa applicants (Guy ,Kethya, Albert and Blessing); and their deceased father in Kinshasa in 2007 on my way to Boma during my visit in the Democratic Republic of the Congo.

   15.When the visa applicants mother died in June 2006 I was in Australia. Upon my arrival in Kinshasa in 2007 before I went to Boma, the visa applicant's' father took me to the cemetery where my daughter Matondo was buried so I could honour and pay tribute my daughter Matondo. Ms. Malonda was in Boma.

   16.Ms. Malonda alone took care of the visa applicants since the death of the visa applicants' father since December 2012 until August 2016. The visa applicants lived with Ms. Malonda alone. Junior who is Ms. Malonda's cousin did not live or take care of the visa applicants during this period from December 2016 to until August 2016, or sometime in 2014. From December 2012 to until 8 Augus.t 2016 the date Ms. Malonda travelled to Australia, Ms. Malonda alone lived and took care of the Visa applicants.

   17.Junior did not live with the visa applicants nor take care of them during this period (from the reported death of the visa applicants father in late 2012 to 8 August 2016). It is inaccurate to say that Junior took care of the visa applicants sometimes in 2014.

   18.Junior did not live with the visa applicants nor take care of them during this period (from the reported death of the visa applicants father in late 2012 to 8 August 2016). It is inaccurate to say that Junior took care of the visa applicants sometimes in 2014.

   19.Thus, when Ms. Malonda travelled to Australia in August 2016, the visa applicants were initially left in the house of Ms. Malonda's mother but it was Junior who was taking care of them. Malonda's mother did not take care of the visa applicants. Malonda's mother is very old, she is over 80 years old. She is weak and physically sick. She cannot take care of the visa applicants because Ms. Malonda's mother needs also someone to take care of her.

   Comment concerning Guy Ndonda oral evidence

   20.The phone interview took place around 4.30 am Kinshasa time. Indeed, Guy was expecting to have phone interview around 2.30 am Kinshasa time,.or 11.30 am Sydney time. Guy was falling asleep when the phone interview took place. Guy did not sleep and was awake all night for waiting the phone interview. The effects of insufficient sleep have impacted oh Guy mental ability during the phone interview. The loss of sleep impacted and disrupted normal functioning of Guy attention and focus during the phone interview. Guy experienced fatigue and forgetfulness during the phone interview.

   21.Guy gave oral evidence that he and his siblings went into the care of their grandma Ms. Malonda in late 2012 after the death of their father. Guy gave oral evidence that Ms. Malonda took care of them in late 2012 after the death of their father until August 2016 when Ms. Malonda travelled to Australia. This is consistent with claims and oral evidence made by their grandma Ms. Malonda

   22.Guy made an error of calculation when he said that they stayed with their grandma Ms. Malonda for between 9 to 11 months. Guy forgot to get the correct length of time they stayed with their grandma Ms. Malonda because of the fatigue and forgetfulness effects caused by Guy falling asleep during the phone interview.

   23.During the phone interview Guy said that they were taken care by their grandma Ms. Malonda in late 2012 after the death of their father until August 2016 when their grandma Ms. Malonda travelled to Australia. The length of time Ms. Malonda stayed with and took care of the visa applicants is about 3 years and 8 months.

   24.Guy gave oral evidence that Junior looked after them since August 2016. Guy did not say that Junior young brother has looked after them since August 2016. This is incorrect. The interpreter did not accurately interpret what Guy said. Guy said that Junior took care of them since August 2016 and not Junior young brother taking care of them since August 2016. The interpreter made a mistake.

   25.Guy said that Junior young brother stayed and took care of them since after Junior went to Angola. Guy said that they lived with their grandma Ms. Malonda from late 2012 after the death of their father to August 2016 when their grandma Ms. Malonda travelled to Australia.

   26.Guy oral evidence is consistent with the claim dated 18 October 2017 made by their grandma Ms. Malonda:

   27.that Guy and his siblings stayed with their grandma Ms. Malonda since December 2012 until August 2016;

   28.that Paka Yeka Junior who is Ms. Malonda's cousin took care of them since August 2016 when their grandma Ms. Malonda went to Australia;

   29.that Junior's brother Niati Niati Rodrick has stayed and looked after them since Junior went to Angola.

   30.Guy and his siblings did not start living with Junior young brother sometime in 2014. This is not accurate. Guy did not give oral evidence that they started living with Junior young brother sometime in 2014. They started living with Junior young brother in October 2017. Junior went to Angola in October 2017.

   31.How could Guy and his siblings started living with Junior young brother sometime in 2014 if from December 2012 to August 2016 Guy and his siblings lived with their grandma Ms. Malonda.

   Comment concerning declaration dated 29 August 2017 by ALBERT SITA LUBELA and 18 October 2017 by Ms. Malonda

   32.On 29 August 2017 when me, Albert Sita Lubela declared that when Ms. Malonda travelled to Australia in August 2016, Guy and his siblings were staying with Malonda's mother who was 80 years old. I declared that the visa applicants stayed with Ms. Malonda's mother because there was no close relative to take care of them. In fact, on my declaration dated 29 August 2017, 1(Albert)wanted to say that Guy and his siblings were left in the house of Ms. Malonda's mother. On my declaration dated 29 August 2017 I did not want to say that Guy and his siblings were in the care of Ms. Malonda's mother. It is a big responsibility for taking care of four children. Ms. Malonda's mother with her age and health condition is unable to take of the four visa applicants.

   33.If I declared that the visa applicants were staying with Malonda's mother, this is because the visa applicants were left in the house of Malonda's mother. But Malonda's mother did not take care of them even though the visa applicants were left in her house. Malonda's mother is very old; she is over 80 years old to properly take of the visa applicants. It was Junior who took care of the visa applicants when Ms. Malonda travelled to Australia in August 2016.

   34.In fact, Ms. Malonda's mother did not take care of the visa applicants even though Ms. Malonda left the visa applicants in her mother's house. It is Junior who was taking care of the visa applicants. The children were left in the house of Malonda's mother but Malonda's mother did not take care of them. It is Junior who was taking care of the visa applicants since August 2016 when Ms. Malonda travelled to Australia, but the children were not staying with Junior in his house.

   35.Junior was taking care of the visa applicants before he went to Angola. Two months before Junior went to Angola, Junior took the visa applicants to stay in his house. Since Junior went to Angola in October 2017 Rodrick who is Junior's young brother has been staying with and taking care of the visa 'applicants.

   36.We have been sending money to Junior and Rodrick for them to take care of the visa applicants. If the visa applicants were not My grandchildren, I would not be sending money to Junior and his brother Rodrick to take care of them. Copies of the money sent to them are attached.

   37.We knew that the children were staying in the house of Ms. Malonda's mother and that Junior was the one taking care of the visa applicants, even though Ms. Malonda did not mention that on her declaration dated 18 October 2017. Ms. Malonda on her declaration dated 18 October 2017 thought the most important thing to declare was the arrangement she made for Junior to take care of the children and also to declare that since Junior went to Angola his brother Rodrick has stayed and looked after the visa applicants.

   Comment concerning Death certificate of the visa applicant's parents

   38.The reason that I, Albert Sita Lubela sought death certificate from the registrar of Birth, Death and Marriage in Kinshasa was not because of ignorance of Congolese. I sought death certificate for the visa applicants' parents because I did not have access to the death certificate of the visa applicants' parents; this is because when the visa applicants' parents died, I was in Australia.

   39.The initial death certificates were issued by the local authorities in the district where the visa applicants 'parents lived. The initial death certificates were not issued by the Registrar of Birth, Death and Marriage.

   40.When the visa applicants' parents died, the chief of local district issued a death certificate called in French "Attestation de Daces" which is called in English "Death Certificate". These attestations of death are used as evidence of death in the Democratic Republic of the Congo.

   41.If these attestations of death are not presented to the Registrar of Birth, Death and Marriage in time provided by Congolese Law, for the Registrar to issue a death certificate, the applicant makes an application for issuance of death certificate to the Magistrate Court.

   42.Because I did not have access to these attestations of death and I had no information about whether these attestations of death were presented to the Registrar for the issuance of death certificate called in French "Acte de Daces", so I made an application for the issuance of the death certificate according to the Congolese Law.

   43.Because I did not have access to those initial death certificates issued by the chief of local district where the visa applicants' parents lived, I had the option to ask for another death certificate to be issued by the Registrar of Birth, Death and Marriage. This death certificate is called in French "Acte de Daces" and translated into English as Death Certificate. Both Attestation de Decas and Acte de Daces are called Death certificate in English.

   44.Because of the length of time it took to apply to the Registrar of Birth, Death and Marriage for issuance of a death certificate Since the death of the visa applicants' parents, the Congolese law requires that the Magistrate Court makes a supplementary judgment before the Registrar issue a death certificate.

   45.As per Comments explained above, I am of the opinion that there are no inconsistencies with regards to the accuracy of the oral evidence made by me and the basis of the issuance of the death certificate made by the Congolese Court concerning the visa applicants' parents.

   46.Thus, the oral evidence made by me, Albert Sita Lubela with regards to the death certificate of the visa applicants' parents is accurate.

   47.In Congolese Magistrate Court view, the basis of issuing the death Certificate for the visa applicants' parents is accurate too.

   48.The supplementary judgment made by the Congolese Magistrate Court and the death certificates issued by the Registrar of Birth, Death and Marriage are sufficient evidence to support that the four visa applicants are orphan and that they are my grandchildren; and that their mother was my daughter.

   49.I am of the view that if there are inconsistencies between oral evidence provided by me, Ms Malonda and Guy Ndonda at the hearing, this is because some of the oral evidence which we gave was not accurately and precisely interpreted by the interpreter.

   50.The visa applicants are my grandchildren and their deceased mother was my daughter. Both parents of the visa applicants are dead. I want my grandchildren to be granted visa so they can come and stay with me here in Australia so my wife Malonda and I, we can take good care of them.

   CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the visa applicants were at the time the visas were applied for, orphan relatives of an Australian relative.

   Is the visa applicant 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 r.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): r.1.03.  In the present case, Mr Albert Lubela, is the relevant Australian relative.

4. For the reasons below, the visa applicants were not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is not met, and cl.117.221 is not met at the time of decision.

5. In this matter, the Tribunal acknowledges that it has more evidence available to it than was available to the Department at the time of their decision.  However, the extent of inconsistencies in the evidence before the Tribunal gives rise to the concern as to whether this evidence can be relied upon.  The review applicant has provided documents from the authorities in the Democratic Republic of the Congo to establish there is a familial connection between him and the visa applicants and that the visa applicants’ parents are deceased.  The Tribunal has reviewed these documents and notes there are a range of inconsistencies and other factors that give concern as to the accuracy of the information contained in the documents.  The Tribunal put to the applicant that it is required to form a view as to the authenticity of documents provided in support of the applications.  The Tribunal noted the delegate placed little weight on the birth certificate for the applicants’ mother which was provided with the visa application and put the applicant on notice that it would be forming a view as to the genuiness of this document, along with the further documents that have now been provided with the review application.

6. In determining whether it can regard these documents as reliable, the Tribunal has taken into account country information which highlights the significant extent to which documents are fraudulently obtained in the Democratic Republic of the Congo.

7. With regard to the prevalence of fraudulent documents, information published by the Immigration and Refugee Board of Canada in April 2014 indicates:

   correspondence with the Research Directorate, the President of the Association for Peace, Human Rights and Justice (Ligue pour la paix, les droits de l'homme et la justice, LIPADHOJ), a Congolese NGO that promotes human rights and works for the protection of victims' rights (VRWG n.d.), stated that there were [translation] "a lot" of fraudulent identity, administrative and legal documents in the Democratic Republic of the Congo (DRC) (LIPADHOJ 14 Mar. 2014).

   The President of the Congolese Association for Access to Justice (Association congolaise pour l'accès à la justice, ACAJ), a Congolese human rights NGO that is made up primarily of lawyers and that promotes security and justice reform (ACAJ Jan. 2013), stated in correspondence with the Research Directorate that [translation] "criminal networks exist and secretly issue the falsified documents" (ibid. 20 Mar. 2014). In correspondence with the Research Directorate, a representative of the Embassy of Canada in Kinshasa also stated that it is [translation] "easy" to obtain falsified documents (Canada 26 Mar. 2014).

   According to the President of ACAJ, the prevalence of fraudulent documents [translation] "is mainly due to the dysfunction of the public administration, and to corruption, influence-pedalling and the prevailing culture of impunity" (ACAJ 20 Mar. 2014). In correspondence with the Research Directorate, the Director of the Centre for Human Rights and Humanitarian Law (Centre des droits de l'homme et du droit humanitaire, CDH), an NGO located in Lubumbashi, in the province of Katanga, stated that fraudulent documents are being produced by government employees who [translation] "often erase any traces of their crimes, with a few exceptions" (CDH 30 Mar. 2014). The representative of the Embassy of Canada in Kinshasa also stated that there is [translation] "a thorny problem of impunity at all levels, with an unwieldy and ineffective bureaucracy" (Canada 26 Mar. 2014).[1]

   [1] Canada: Immigration and Refugee Board of Canada

8. In relation to certificates and attestations of birth:

   Twenty percent of cases are falsifications: The documents are not recorded in the civil status register .... [Because of the weaknesses of the civil status system,] it is easy for an individual to obtain false documents[2].

   Cultural traditions explain these practices, at least in part.  Congolese law allows a citizen to obtain a birth certificate, a marriage certificate, a divorce certificate, a national ID, and in …some cases, an adoption decree based on a statement made in front of a judge.  the statement is not verified by a government official.  many Congolese citizens, particularly in rural areas, distrust the state, and see no reason to spend money to obtain official documents.  As a result, nearly all documents are registered years late. Naming conventions are not standardized: many applicants for American visas have changed their names three or four times, each name backed by a valid passport.[3]

   [2] Canada: Immigration and Refugee Board of Canada

   [3] ‘DRC Passports and Corruption: Yet Another Challenge to Good Governance in the Congo’, US Embassy, Kinshasha, 17 December 2009, CISE1310071788, para.5

9. In relation to death certificates:

   According to the representative, death certificates can also be difficult to obtain and [translation] “it all depends on how the person died and where they died”. If a person dies at home, in a small village or in the bush, no death certificate is issued.[4]

   One out of every two death certificates received last year for verification was falsified, [that is,] not recorded in the appropriate register, and two out of every three marriage certificates received last year were falsified, given that there was no information in the register for the year indicated.[5]

   It is very difficult to ascertain whether birth, marriage and death certificates are genuine, as there is no national registry where copies of birth, marriage and death certificates are kept.  local authorities issue these documents but do not keep copies for their records … every death in the DRC has to be registered at l’Etat Civil, in the respective area it takes place in. L’Etat Civil will then issue a death certificate called Acte de Deces.  the actual time of death would be evident from Acte de Deces. Furthermore, the name of the deceased, residence and profession, location, cause of death will be evident from the certificate.[6]

   [4] ‘Democratic Republic of the Congo: Whether a birth, marriage or death certificate can be obtained by a person residing outside the country’, Immigration and Refugee Board of Canada, 30 November 2011, COD103932.FE

   [5] Canada: Immigration and Refugee Board of Canada

   [6] ‘Democratic Republic of Congo January 2009’, UK Home Office, 29 January 2009, UKZAR, para.33.08, p.149

10. Regulation 1.14(a)(iii) requires the visa applicants to be a relative of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.  The review applicant claims to be the maternal grandfather of the visa applicants. The Tribunal is not however persuaded the evidence establishes that this is in fact the case.

11. In support of there being the claimed familial connection, the visa and review applicants have provided documents, sourced on 30 November 2014, from the Congolese authorities in lieu of birth certificates issued at the time of the actual birth of the visa applicants and of their mother, Matondo Sita Lubela.

12. The Officially Recorded Document on a Matter of Common Knowledge, replacing a Birth Certificate, issued by the Congolese authorities, regarding Matondo Sita Lubela, dated 30 August 2014, states this person was born in Kinshasa, on 24 November 1974, whereas a further document provided with the review application, a birth certificate, dated 18 September 2017, issued by Kinshasa Matete Magistrates Court, states Matondo Sita Lubela was born in Kimpese on 1 August 1975.  The Tribunal is not satisfied the review applicant has provided a convincing explanation for the discrepancy in these dates and birth locations, nor why the Tribunal should accept his claim the more recent birth certificate issued in September 2017 should be preferred.

13. The review applicant did not declare Matondo Sita Lubela as his child when he applied to migrate to Australia in 2002.  The Tribunal is not persuaded by the review applicant’s claim that he did not declare Matondo Sita Lubela as his child on forms associated with his visa application out of a fear this would upset the woman he was at that time married to.  The Tribunal acknowledges a person may wish to avoid unnecessary conflict with their spouse, but is not satisfied any such wish would explain why the review applicant would leave out such an important detail, such as declaring all of his children, [details deleted]. The Tribunal notes any omission of this type would have resulted in the review applicant providing false and misleading responses to questions from the Department as to whether he had children. The Tribunal notes that the alternate options of the review applicant either knowingly omitting details of his children [details deleted], or claiming a biological connection with the visa applicants’ mother calls into question the review applicant’s overall credibility.

14. The review applicant gave evidence that he ceased his endeavour to get visas for his previous wife and the five children from that marriage to join him in Australia, when he discovered she was in a relationship with another man.  If it was indeed the case that the review applicant had two daughters he had failed to declare to the Department out of fear as to how his previous wife may react, one of whom was Matondo Sita Lubela, it was then open to him to correct this omission and inform the Department of the incorrect information he had provided about his offspring. The Tribunal is not persuaded why the review applicant would have chosen not to do so.

15. The weight given to the oral evidence provided during the hearing is further influenced adversely by the inconsistencies in this evidence, particulars of which were put to the review applicant in a letter, pursuant to s.359A of the Act following the hearing. In relation to the review applicant's response to this letter, the Tribunal accepts the suggestion he asked his family members to contact Ms Malonda to ascertain her relationship status in 2017 is not an accurate assertion.  The Tribunal accepts this was a typographical error in the Tribunal’s letter, which should have stated ‘2007’ rather than ‘2017’. 

16. The Tribunal does not accept this aforementioned typographical error is indicative of inaccurate interpreting during the hearing, which is the review applicant’s explanation for a range of inconsistencies and discrepancies in the evidence provided by the witnesses during the hearing.  The Tribunal does not accept this explanation as the review applicant was given a clear instruction at the start of the hearing to bring to the attention of the Tribunal during the hearing any concerns he had in relation to the accuracy of the interpreting assistance provided by the interpreter in the Lingala and English languages and no such concerns were brought to the attention of the Tribunal at the time of the hearing, nor raised until the applicant was invited to respond to the s.359A letter.  The Tribunal has formed the view the review applicant has raised concern as to the accuracy of the interpreting in an attempt to explain inconsistencies in the evidence that otherwise cumulatively raise concern as to the reliability of evidence provided by Ms Malonda and Mr Sita Lusivika Guy Ndonda. The Tribunal has viewed in the same light the contention from the review applicant that aspects of the evidence provided by Mr Sita Lusivika Guy Ndonda can be explained by his being in a fatigued state, as this again is a claim only raised in the context of the response to the s.359A letter and the responses and demeanour of Mr Sita Lusivika Guy Ndonda over the phone at the time of the hearing gave no indication he was anything such as well oriented to time, place and the hearing process.

17. In relation to the review applicant's claim Ms Malonda is in effect incapable of providing anything but reliable evidence because she is a God-fearing woman with Christian values, whilst acknowledging the influence that scripture can have on a person, the Tribunal is not persuaded any such religious affiliation precludes a person from potentially providing unreliable evidence.

18. In considering the overall evidence as to whether there is a familial connection between the review applicant and the visa applicants, the Tribunal is not satisfied the documents acquired from the Congolese authorities in November 2014 and September 2017 can be relied on.  In forming this view the Tribunal does accept documentation attesting to the birth of individuals in the Democratic Republic of the Congo is frequently sought sometime after the time of birth and that no central registrar of births, deaths and marriages is kept in that country.  In this respect, the Tribunal acknowledges that the review applicant’s claims, as to why birth certificates from the time of the birth of the visa applicants and Matondo Sita Lubela are not available, are reasonable.  However, due to the inconsistencies in the details regarding the time and location of the birth of Matondo Sita Lubela and the extent of fraudulent documentation in the Democratic Republic of the Congo, along with the lack of other contemporaneous documentary evidence demonstrating a connection between the review applicant and either the visa applicants or Matondo Sita Lubela, the Tribunal is not satisfied there is sufficient evidence to establish that the review applicant is the biological father of a Matondo Sita Lubela  and thereby an Australian relative of the visa applicants.

19. Accordingly, r.1.14(a)(iii) was not met at the time of application and does not continue to be met at the time of decision.

20. 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.

21. In this matter, there is no contention that either of the visa applicants’ parents should be presumed to be dead, due to an absence of seven or more years.  The contention is that both mother and father of the visa applicants are known to be deceased.

22. In relation to the Application for a Guardianship Judgement, dated 22 August 2014, issued by the Congolese authorities, which was provided to the Department with the review application, the Tribunal is not satisfied this document establishes the parents of the visa applicants are deceased. This is because of the general concern regarding the reliability of documents from the Congolese authorities which is discussed elsewhere in this decision and that in and of itself a Court judgement regarding guardianship does not require or establish that the natural parents of the children involved are deceased.

23. With respect to the deaths of the visa applicants’ parents. The Tribunal acknowledges the review applicant has provided details regarding the process whereby a death certificate is issued which is broadly consistent with that available from the country information the Tribunal has reviewed.

24. In relation to the two documents issued by the Congolese authorities in 2017 with respect to the alleged death of Matondo Sita Lubela in 2006, the Tribunal is not satisfied, for similar reasons as were discussed in relation to documents issued in relation to her time and place of birth, that these documents can be relied upon. As well as an underlying concern with regard to the ease with which fraudulent documents can be acquired in the Democratic Republic of the Congo, there are inconsistencies in relation to the date on which the review applicant declared Matondo Sita Lubela died in a statutory declaration, dated 22 September 2015, which he provided with the visa application and the date identified in the death certificate sought from the Congolese authorities in July 2017. The Tribunal is not persuaded by the review applicant’s claim that the discrepancy of six or more months between May and November 2006 can be adequately explained by the review applicant’s forgetfulness as to when such an event as the claimed death of his daughter occurred.

25. In relation to the documents issued by the Congolese authorities in 2017 with respect to the alleged death of Jean-Marie Ndonda, the Tribunal is not satisfied that these documents can be relied upon.  This is due to a general concern regarding the reliability of documents issued by the Congolese authorities and also due to the lack of contemporaneous documents from sources such as the Congolese armed forces which would support the applicant’s claim.  When asked about whether such documents would exist, given Jean-Marie Ndonda is reported to have been a relatively high ranked army officer, the review applicant stated that it would, but did not adequately explain why he had not sought to gather such evidence so as to support the visa applicants’ claims.

26. In support of the claim that the visa applicants cannot be cared for by their parents due to their deaths, written declarations and oral evidence have been provided to the Department and Tribunal with respect to care provided to the visa applicants since the alleged death of Jean-Marie Ndonda in 2012. The Tribunal has placed no weight on these claims due to the inconsistencies in the reported care arrangements, which is evidenced in the declarations from the review applicant and Ms Malonda, and in the oral evidence provided during the hearing.  The Tribunal is not satisfied the review applicant has adequately explained why he and the witnesses have provided such inconsistent information regarding these care arrangements.

27. The Tribunal considers the review applicant’s explanation as to his relationship history with Ms Malonda is plausible, however the Tribunal is not satisfied this explanation accounts for the inconstancies in Ms Malonda’s evidence as to when she had contact with the visa applicants and Matondo Sita Lubela.  It remains unclear why the review applicant initially claimed the visa applicants were in the care of Ms Malonda’s mother after Ms Malonda came to Australia in 2016, but has subsequently modified this claim regarding their care arrangements.  It also remains of concern to the Tribunal that Mr Sita Lusivika Guy Ndonda gave significantly different evidence as to care arrangements than that provided by the review applicant.  

1. The Tribunal is not satisfied the evidence provided in relation to care arrangements for the visa applicants since 2012 supports the contention that the visa applicants’ parents are deceased.

2. The Tribunal acknowledges the review applicant and Ms Malonda have provided evidence they remitted funds to Pake Yeke Junior and Niati Niati Roderick in the Democratic Republic of the Congo since September 2016 and that this is consistent with the review applicant’s claims regarding these persons roles in caring for the visa applicants.  However, the Tribunal is not satisfied it can conclude from these remittance receipts to what purpose these funds were put. The review applicant may have decided to provide financial support to the visa applicants for any number of reasons which do not necessarily involve their parents’ deaths.

3. Overall, the Tribunal is concerned that the review applicant has not been entirely truthful in his evidence concerning the children’s parents. After considering the available evidence, including the review applicant’s responses to information put to him pursuant to s.359 of the Act, the Tribunal is not satisfied there is sufficient reliable evidence establishing the visa applicants’ parents are deceased.

4. Accordingly, r.1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

5. Given the findings above, cl.117.211 is not met.

6. The Tribunal finds that the visa applicants do not continue to satisfy the criterion in cl.117.211, and this is not only because the visa applicants have turned 18. It follows that cl.117.221 is not met.

7. There is no suggestion that the visa applicants are the children of the review applicant, either biological or adopted. The Tribunal is not satisfied the visa applicants meet the requirements for the grant of the Subclass 101 or Subclass 102 visa.

8. The review applicant spoke about the visa applicants’ current circumstances and their expectations to come to Australia. The Tribunal is unable to have regard to such matters. Having found that the visa applicants do not meet the requirements for the grant of the visas, the Tribunal has no option but to affirm the decision under review.

9. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.

   DECISION

10. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    David Barker
    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.