Mbembe (Migration) - [2024] AATA 2192

Mbembe (Migration) [2024] AATA 2192 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Francoise Mbembe
VISA APPLICANT:  Miss Diana Kanefu
REPRESENTATIVE:  Dr Nathan Stephen Willis (MARN: 1467692)
CASE NUMBER:  2200110
HOME AFFAIRS REFERENCE(S):          CLF2022132
MEMBER:Edward Howard
DATE:14 June 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 14 June 2024 at 3:07pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ of an Australian relative – no parental care requirement – identity of the visa applicant’s parents – credibility concerns – alleged death of the parents – DNA test results – birth certificate – UNHCR documents – false or misleading information – waiver of requirement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cl 117.211; Schedule 4, PIC 4020
CASES
EC v MIMIA [2004] FCA 978
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 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 25 November 2019. 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).
The Delegate refused to grant the visa as they found that the visa applicant did not meet the requirements of reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2 to the Regulations.
This review was conducted jointly with two other matters, namely the review of Miss Butoyi Kanefu (2200106) and Master Dieu Kanefu (2200109).
The review applicant appeared before the Tribunal on 24 January 2024 and 14 February 2024, to give evidence and present arguments. The Tribunal also received oral evidence from Butoyi Kanefu (the visa applicant’s sister) and Nsimire Aimerance. The Tribunal Hearing was conducted with the assistance of an interpreter in the Swahili, Swahili (Kiswahili) and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The review applicant is Ms Francoise Mbembe, an Australian citizen. The visa applicant is Diana Kanefu, born in Democratic Republic of Congo and currently resident in Malawi.
The review applicant claims to be the aunt of the visa…

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 Mbembe (Migration)

Details

AGLC: Mbembe (Migration) [2024] AATA 2192
Case: [2024] AATA 2192
Decision Date: 14 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by a visa applicant, a ten-year-old child from the Democratic Republic of the Congo, against a decision to refuse her application for a Subclass 117 (Orphan Relative) visa. The review applicant, claiming to be the visa applicant's paternal aunt, sponsored the application. The visa applicant asserted she was the biological child of Mr Kashindi Kanefu and Ms Jacqueline Chuki, and that she and six siblings shared these parents.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for an "orphan relative" under clause 117.211 of the Migration Regulations 1994, specifically whether she was the biological child of deceased parents. This required the Tribunal to assess the credibility of the evidence presented regarding the identity of her parents and their alleged deaths, particularly in light of conflicting information and DNA test results.

The Tribunal noted that while a birth certificate purported to name the visa applicant's parents, DNA test results confirmed a probable half-sibling relationship with one claimed sibling and a full sibling relationship with another, but found it unlikely the review applicant was the aunt of four other claimed siblings. The delegate had placed limited weight on the birth certificate due to these discrepancies and noted the absence of death certificates or other evidence to support the claim that the parents were deceased. Consequently, the delegate had concerns that one or both parents might still be alive, leading to the conclusion that the visa applicant had not sufficiently demonstrated she was an orphan relative, thus failing to meet the requirements of regulation 1.14(b) and clause 117.211.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal will consider this requirement of reg 1.14 in this decision record, for the purpose of assessing whether the visa applicant meets cl.117.211 at the time of application.The Evidence of the PartiesBackground The visa applicant is 10 years old, born on 18 April 2014 and is a citizen of Democratic Republic of the Congo (DRC). The visa applicant currently resides in Malawi. The review applicant claims to be the paternal aunt of the visa applicant. The visa applicant applied for a Subclass 117 (Orphan Relative) visa, on 25 November 2019. In her application, the visa applicant listed six siblings, each of whom also made an application for a Subclass 117 visa. The visa applicant claimed that she and her six siblings were biological siblings and the biological children of the named parents, Mr Kashindi Kanefu and Ms Jacqueline Chuki (the parents). The review applicant is the sponsor of the visa applicant and the sponsor in the other six applications. She claimed to be the paternal aunt of all seven applicants. On 7 December 2020, as evidence of the visa applicant’s date of birth and parentage, the Department was provided with a birth certificate obtained by the review applicant and which purported to be from the Kavimvira Health Centre in DRC, stating that her date of birth was 18 April 2014 and naming the parents as her biological parents. A birth certificate was also provided from the same source for each of the six children named as siblings in the visa applicant’s application and who had their own applications on foot at that time. Each certificate lists the same parents as biological parents. On 18 May 2021, DNA test results were received, confirming probable siblingship between the visa applicant and two of the children named as his siblings, namely Butoyi Kanefu (Butoyi) as a half-sibling and Dieu Kanefu (Dieu) as a full sibling. The DNA results of the other four children named as siblings found it was unlikely that the review applicant was their aunt. Their individual applications were subsequently withdrawn. In the Decision Record of 28 October 2021, in which the Delegate refused the application of the visa applicant, the delegate stated:“… It is not clear who your parents are as you and your claimed siblings provided birth certificates stating that you have the same biological parents, which has been confirmed by the DNA test results as incorrect for five of your claimed siblings. I have therefore placed limited weight on your birth certificate.” Additionally, the Delegate noted that the visa applicant had not provided evidence of her parent’s death in the form of death certificates or any other documentation to support the claim. The Delegate determined that based on these findings they had concerns that one of the parents may still be alive. Based on that information, the Delegate determined that the visa applicant had not sufficiently demonstrated to be an orphan relative and therefore failed to meet regulation 1.14(b). Therefore, the visa applicant did not satisfy clause 117.211.Evidence of the Visa Applicant’s half-sibling sister – Butoyi Kanefu

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.