Mbembe (Migration) - [2024] AATA 2191

Mbembe (Migration) [2024] AATA 2191 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Francoise Mbembe
VISA APPLICANT:  Miss Butoyi Kanefu
REPRESENTATIVE:  Dr Nathan Stephen Willis (MARN: 1467692)
CASE NUMBER:  2200106
HOME AFFAIRS REFERENCE(S):          CLF2022130
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 2:50pm

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 Master Dieu Kanefu (2200109) and Miss Diana Kanefu (2200110).
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 (visa applicant) 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 Butoyi Kanefu, born in Democratic Republic of Congo and currently resident in Malawi.
The review applicant claims to be the aunt of the visa applicant who…

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: Mbembe (Migration) [2024] AATA 2191
Case: [2024] AATA 2191
Decision Date: 14 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by a visa applicant, a citizen of the Democratic Republic of Congo, against the refusal of her application for a Subclass 117 (Orphan Relative) visa. The review applicant, who claimed to be the visa applicant's paternal aunt, was the sponsor for the visa application. The visa applicant had claimed to be the biological child of Mr Kashindi Kanefu and Ms Jacqueline Chuki, and that she and six siblings shared the same biological parents.

The primary legal issues before the Tribunal were whether the visa applicant met the criteria for an "orphan relative" under clause 117.211 of the Migration Regulations 1994, specifically concerning the identity of her parents and whether they were deceased. This involved assessing the credibility of the evidence provided, including birth certificates and DNA test results, and determining if the applicant had sufficiently demonstrated that she was an orphan relative.

The Tribunal noted that while a birth certificate indicated the visa applicant's parents, DNA test results confirmed probable half-siblingship with only two of the six claimed siblings. The DNA results made it unlikely that the review applicant was the aunt of the other four claimed siblings, whose applications were subsequently withdrawn. The Delegate had placed limited weight on the birth certificate due to the discrepancies revealed by the DNA testing and had also noted the absence of death certificates or other documentation to support the claim that the visa applicant's parents were deceased. Consequently, the Delegate concluded that the visa applicant had not sufficiently demonstrated she was an orphan relative, failing to meet regulation 1.14(b) and clause 117.211.

Orders

Orders of the court

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Background

Background to the litigation

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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 11 years old, born on 19 June 2012 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 19 June 2012 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 half siblingship between the visa applicant and two of the children named as her siblings, namely Diana Kanefu (Diana) and Dieu Merci Kanefu (Dieu). 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 was (sic) been confirmed by the DNA test results as incorrect for 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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