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

1. 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).

2. 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.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. 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.

5. This review was conducted jointly with two other matters, namely the review of Master Dieu Kanefu (2200109) and Miss Diana Kanefu (2200110).

6. 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.

7. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The review applicant claims to be the aunt of the visa applicant who lodged a claim for an Orphan Relative visa (Subclass 117), on 25 November 2019.

11. The issue in the present case is whether the visa applicant is an orphan relative of the review applicant.

    Is the visa applicant an orphan relative of an Australian relative?

    Relevant Law

12. The criteria for a Subclass 117 visa is set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the regulations).

13. 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. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

14. ‘Orphan relative’ is defined in reg 1.14 of the Regulations (which is extracted in the attachment to these reasons) states that an applicant is an orphan relative 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 the visa would not be in the best interests of the applicant.

15. 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, it is claimed that the review applicant is the relevant Australian relative.

16. As noted above, 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”.

17. 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 PARTIES

    Background

18. 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.

19. 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).

20. 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.

21. 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.

22. 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.

23. 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).

24. 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.

25. 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.”

26. 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.

27. 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

28. The visa applicant currently resides in Malawi and is 11 years old. Her evidence included a Statutory Declaration which claimed that she witnessed her parents death at their home in DRC. She states as follows:

    “2.       I was lying down in my bedroom to go to sleep and my mother went to close the front door. That’s when I heard a gunshot. My father then went to check what happened and I heard another gunshot. At this time my siblings were asleep. I went to see what happened at the door and I saw both of my parents lying there dead and there was lots of blood. I didn’t see the people who did this. I was very scared and I went and woke up my siblings.

    3.I then went with my siblings to my father’s friend (sic) house who was living in the same street. I knew he was a friend of my father but I was unsure of his name. We told him what had happened and that our parents had been shot. His job was working on a ship and on that night he took us to the ship that he worked on. He told us it would not be safe for us to stay with him.

    4.My siblings and I got on the ship with him and he took us to Kalemie, Lake Tanganyika. We left that night and we got there on or around 1pm the next day. We got there and we did not have any support. We spent one (1) week living on the street and begging for food. After one (1) week we were tired and we went to a local church and the church said they did not have any support to offer. We wanted to find someone who could help us.

    5.The church ended up linking us with someone to help us get to the refugee camp. I do not remember the name of this person but they provided us with transport to a transit centre in Kalonga, Malawi. We stayed at this transit centre for several months as we could not afford the transport fare to get to the Dzaleka Refugee Camp in Dowa, Malawi. A migration officer eventually offered to help us and paid for us to go in a truck to the Dzaleka Refugee Camp.

    6.Nsimire has been caring for us in the Refugee Camp since February 2023 and prior to that we were being cared for by my Munga Toto KITUZA.”

29. The visa applicant also gave oral evidence concerning the above events at the Hearing of this matter. Her recollection is that it occurred in early 2017.

30. She described how she and the other six children went to the home of a friend of their father’s in their village, who took them with him on a ship to Kalemie and how they eventually ended up at the refugee camp in Malawi. In her Statutory Declaration, the visa applicant stated that they remained on their own for one week in Kalemie, whereas in her oral evidence she referred to a two week period.

31. The Tribunal notes that the visa applicant was approximately 4 ½ years old at the time of these events and that of the other six children in her company their ages were as follows:

    (i)Bukuru -  4 ½ years old;

    (ii)Andrea -  3 ½ years old;

    (iii)Diana -  2 years and 9 months old;

    (iv)Dieu -  1 year and 10 months old; 

    (v)Genti - 10 months old; and

    (vi)Fatuma - 10 months old.

32. The Tribunal informed the visa applicant that given she was approximately 4 ½ years old at the time that these events occurred, it might cause the Tribunal to be concerned as to how she could recall this evidence in such detail given that she was so young at the time. The visa applicant’s response to this was although she was young and cannot say that she remembered everything, she says that she did remember what she gave in evidence. She did not refer to any lack of recall or memory loss concerning or relating to the alleged events.

    Evidence of Nsimire Aimerance

33. Evidence was provided by Ms Nsimire Aimerance (Ms Aimerance), who claims to have been a friend of the visa applicant’s mother from their childhood.

34. Ms Aimerance provided a Statutory Declaration dated 17 January 2024 and also gave oral evidence at the Hearing of this matter.

35. Ms Aimerance stated that she was informed of the death of the visa applicant’s parents by her sister-in-law who lived in the same locality as the parents, at about 5am on the following day. She states that she left her residence in Bukavu at approximately 8am that morning and travelled by bus to the town where the visa applicant’s family lived, Uvira. She claims to have arrived there in the afternoon following the death.

36. Ms Aimerance states that she arrived after the burial of the bodies had already occurred but attended a funeral, or ceremony similar to a funeral, that same day. She says that people at the funeral did not know where the children were at that time.

37. Her evidence is that she is the current carer of the visa applicant and of the six children listed as siblings in the visa applicant’s application (i.e. including those whose claims were withdrawn), at the refugee camp in Malawi. She claims that she met the applicants in the camp and commenced caring for them after she had been requested to do so by another family acquaintance, Ms Toto Munga (Ms Toto).

38. Ms Aimerance stated that the children were being cared for in the camp by Ms Toto who wished to be accepted into the United States. Ms Toto therefore asked Ms Aimerance to look after the children.

    Evidence of the Review Applicant

39. The review applicant claims to be the paternal aunt of the visa applicant in the application lodged on 25 November 2019 for an Orphan Relative Subclass 117 visa.

40. Her evidence was that her parents died when she was very young and that she did not know of the existence of her brother until she claims to have been contacted by Ms Toto who informed her that she was caring for her brother’s children.

41. In the application documents, (Form 40CH and Form 47CH), it was claimed that the visa applicant had six biological siblings who were also the biological children of the parents. The application documents included details of the dates of birth of each of the parents and the siblings.

42. The Tribunal notes that the review applicant stated in her Statutory Declaration that she was told about the death of her brother and his wife by Ms Toto and by the visa applicant.

43. The Tribunal asked the review applicant how she was aware of her brother’s date of birth given she never knew of his existence until Ms Toto informed her. Her response was that she was informed of his date of birth by Ms Toto. When asked as to how Ms Toto knew her brother’s date of birth, she replied that, as they all came from the same village, Ms Toto had that knowledge.

44. She stated that Ms Toto and her brother went to school together and that they were the same age. She also stated that that was how she obtained the date of birth of the children’s mother because Toto also went to school with the mother.

45. The Tribunal notes that Ms Toto’s date of birth is 12 December 1973, making her approximately 2.5 years older than the father and more than 5 years older than the mother.

46. The Tribunal then asked the review applicant how she obtained the dates of birth of the visa applicant and the six children listed as her siblings in the application. Her response was that Ms Toto also gathered information for her.

47. She stated that she asked Ms Toto to go to the hospital in the village and obtain the birth certificate for the visa applicant as well as for the six children listed as her siblings, who each had their own application on foot. Ms Toto then provided her with the seven birth certificates.

48. On 7 December 2020, the Department was provided with the visa applicant’s birth certificate. The birth certificate purported to be from the Kavimvira Health Centre in DRC and listed the date of the birth of the child and listed the parents as the biological parents.

49. The review applicant was asked how the birth certificates could list the same biological parents for the visa applicant and the six children listed as her siblings, when DNA results state that they were not all blood related. Her initial response was that the children with no DNA connection may have been the children of the mother only or of some other people.

50. The Tribunal again put the question to the review applicant as to how the birth certificates could state that children had the same mother and father, when the DNA results state that they were not all blood related. Her response was that she could not provide an explanation.

51. The Tribunal then put to the review applicant that the birth certificates were contrived or provided following a fraudulent process. Her response were words to the effect that “…they have come from where the children were born”.

52. In her Statutory Declaration the review applicant stated that she was “…. shocked, disappointed and upset by the DNA test results….. I believed they were biologically related to me”.

53. When questioned as to how these birth certificates could be obtained, when there was clearly no biological connection between some of the children and the people named as their parents, the review applicant stated that if a parent or person went to the hospital and explained the parentage of the child that they would give them a birth certificate.

54. The Tribunal put to the review applicant that the information contained in the birth certificate therefore merely reflected the information given by the person attending the hospital. The Tribunal stated that this would require that Ms Toto was aware of the dates of birth of each of the seven children and the two parents, to whom she was not biologically related.

55. The Tribunal expressed to the review applicant that it may be unsatisfactory for the Tribunal to rely on a document where a hospital has certified as to the biological parents of a child, when it was clearly not so in relation to the four of the children named as siblings in the visa applicant’s application.

    Consideration of the Evidence

    Visa applicant

56. The Tribunal finds it highly unlikely and implausible that the visa applicant can recall the details of the events surrounding the death of her parents and the period following that event until their arrival at the camp in Malawi, given that she was approximately 4 ½ years old at the time.

57. The Tribunal finds it highly unlikely and implausible that the visa applicant, as a 4 ½ year old child, could safely convey six other children, between the ages of 10 months - 4 ½ years (noting that two of the children were 10 months old), on the alleged journey to the home of their father’s friend at night and then to Kalemie by boat where they remained on their own for one week (based on her Statutory Declaration) or two weeks (based on her oral evidence).

58. The Tribunal does not accept the visa applicant’s evidence relating to the events surrounding the alleged death of her parents or the period following, including the alleged journey undertaken with the other children from DRC to Malawi.

    Ms Aimerance

59. The Tribunal notes that Ms Aimerance was not a witness to the death of the visa applicant’s parents nor did she see their bodies. She purportedly attended a service after the burial. Her evidence was that she arrived after the burial had occurred. Therefore, there is no evidence before the Tribunal from any persons who witnessed the alleged death of the visa applicant’s parents or their burial, other than the claims made by the visa applicant herself. The Tribunal does not accept the evidence of Ms Aimerance in relation to these matters.

    Review applicant – Knowledge of Dates of Birth - Birth certificates – UNHRC documents

60. The evidence of the review applicant is that Ms Toto provided her with the date of birth of the visa applicant and the other children named in the subject application and also of the parents’ dates of birth. Her evidence is that, with the knowledge of the relevant dates of birth, Ms Toto attended the hospital where the children were purportedly born and obtained their birth certificates.

1. The Tribunal finds it highly unlikely and implausible that Ms Toto would know the dates of birth of the visa applicant and the other six children listed in the application, or the dates of birth of each of the parents - none of whom she was related to.

2. The Tribunal does not accept that Ms Toto would know the dates of birth of the parents merely because she attended school with them. The Tribunal does not accept the evidence of the review applicant that Ms Toto was aware of the date of birth of the father as they were the “same age”, when clearly they were not. As noted earlier, Ms Toto is 2.5 years older than the father and 5 years older than the mother.

3. In the circumstances, the Tribunal does not accept that Ms Toto had knowledge of the dates of birth of either parent, the visa applicant or the other six children noted in the visa applicant’s application.

4. The review applicant concedes that she did not have any knowledge of the existence of her brother, the visa applicant or the other children until after the alleged death of her brother and hence had no knowledge of the relevant dates of birth. The Tribunal does not accept the evidence of the review applicant that a third party, Ms Toto, had knowledge of such information and provided this information to the review applicant. In this regard, the Tribunal finds the evidence of the review applicant to be untruthful. The Tribunal does not consider the review applicant to be a truthful or credible witness.

5. The Tribunal notes the evidence that Ms Aimerance started to care for the children in about February 2023 and prior to that time they were cared for by Ms Toto. Documents provided to the Department refer to Ms Toto arriving at the camp in Malawi on 13 August 2016 accompanied by her eight children and another person who is not a blood relation. Her eight (8) children ranged in age from 3 years old to 14 years old.

6. The review applicant’s evidence was that Ms Toto informed her of the death of her brother and his wife and that she was caring for her brother’s children at the camp in Malawi. The review applicant further stated that she had requested Ms Toto to go to the hospital where the children had been born (Kavimvira Health Centre in DRC) in order to obtain birth certificates.

7. In order to do so, Ms Toto would have had to travel from the Dzeleka Camp in Malawi to the Kavimvira Hospital in DRC, a distance of approximately 1,800 km, obtain the birth certificates and then travel back to the camp in Malawi, an 1,800km return journey.

8. The Tribunal finds it to be highly unlikely and implausible that Ms Toto would make such a journey from Malawi to DRC and back to Malawi, a round trip of 3,600km, to obtain the birth certificates of seven children to whom she is not related. The Tribunal notes that on or around the time that the birth certificates were allegedly obtained by Ms Toto, nine (9) of the children under her care were under the age of 10.

9. As part of the application process, two documents were provided from the United Nations High Commissioner for Refugees (UNHCR), namely Refugee Registration documents. These documents purport to identify persons at the refugee camp by name, gender, relationship and date of birth.

10. The first of these documents was dated 10 July 2017 and the second was dated 27 August 2020. The Tribunal notes that the document of 27 August 2020 has provided different birth years for the visa applicant and the six alleged siblings referred to in her application, as compared with the earlier registration document. Further, the earlier document refers to the children as half siblings but in the later document refers to them as siblings.

11. The information contained in the documents is self-reported and therefore, in the present case, was provided either by the children themselves, which is highly unlikely given their ages, or by an unidentified third party.

12. Given that the Tribunal is not satisfied that Ms Toto had knowledge of the dates of birth of the visa applicant and the other children listed in her application, the source of this information remains unclear and the information itself is unverifiable. In the circumstances, the Tribunal places very limited weight upon these documents.

13. Based on the evidence as to how the visa applicant’s birth certificate was allegedly obtained, the Tribunal has serious concerns as to the truthfulness and veracity of the birth certificate and its contents. The Tribunal cannot be satisfied as to the validity of the birth certificate of the visa applicant and therefore cannot be satisfied as to the validity of any information contained in that document, including her date of birth or the identity of her parents.

14. In the circumstances, the Tribunal gives no weight to the birth certificate and UNHCR documents as evidence of the date of birth, family composition or parentage of the visa applicant.

15. The Tribunal finds that the evidence given by the review applicant and the visa applicant, both documentary and oral, in relation to: the alleged death of the parents; the ongoing care of the children and their journey to Malawi following these alleged events; the knowledge of the dates of birth of the visa applicant, her parents and those of the six children listed as her siblings; and the obtaining and provision of the visa applicant’s birth certificate by Ms Toto, to be contrived, implausible and untruthful. The Tribunal formed the view that the review applicant and the visa applicant were not truthful or credible witnesses.

16. In the circumstances, the Tribunal finds that it cannot rely on the evidence before it concerning the identity of the visa applicant’s parents, nor the alleged circumstances surrounding their deaths.

17. As a result of this, the Tribunal cannot be satisfied as to whom the parents of the visa applicant are and therefore whether or not they are dead. In the circumstances, the visa applicant fails to satisfy reg 1.14(b) and hence fails to satisfy cl 117.211 of Schedule 2 to the regulations.

    Evidence put to the Review Applicant pursuant to S.359AA and Public Interest Criterion 4020

18. Pursuant to section 359AA: the review applicant was informed at the Hearing that there was certain evidence presented to the Tribunal containing information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review; the review applicant was informed of the relevance of the evidence to the review and the consequences of the evidence being relied upon in affirming the decision under review; the gist of the evidence was put to the review applicant.

19. It was explained to the review applicant that in the application by the visa applicant (together with the two (2) other ongoing applications before the Tribunal), application documentation was received by the Department which included a Form 40CH Sponsorship Form and a Form 47 CH Migration Application Form.

20. It was explained to the review applicant that in the visa application, the review applicant gave information to the effect that the visa applicant and the six children listed as her siblings were all biological children of the parents. However, it is clear from the DNA testing results that four (4) of those children listed were not related and could not have been the biological children of the parents.

21. The Tribunal explained to the review applicant the Public Interest Criterion (PIC) 4020 (PIC 4020) in Schedule 4 of the regulations which deals with the provision of information that is false or misleading in a material particular.

22. Further, it was explained that this Public Interest Criterion must be satisfied, in order to obtain a grant of a Subclass 117 visa. It was explained that if it was found that an applicant did not satisfy PIC 4020 there may be significant consequences including affirming the decision not to grant a visa.

23. The Tribunal then explained to the review applicant that if it was found that she had provided information which was false or misleading information in breach of PIC 4020, that pursuant to PIC 4020(4), the requirements of the criterion may be waived if it was shown that there were compelling or compassionate circumstances.

24. The review applicant was orally invited to comment on or respond to the evidence; further the review applicant was advised that she make seek additional time to comment on or respond to the evidence. The review applicant requested a brief adjournment to confer with her representative. Following this adjournment the Tribunal was informed that the review applicant would not make a comment on or respond to the evidence at the time of the Hearing. The review applicant was granted 14 days to provide further evidence in relation to the matters raised.

25. On 5 March 2024 the Tribunal received further evidence from the review applicant which included a Statutory Declaration of the review applicant, sworn 26 February 2024 and further submissions.

26. The Tribunal notes that the requirement in PIC 4020(1) not to provide  false or misleading information, applies whether or not the Minister became aware of the information that is false or misleading in a material particular because of information given by the review applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the review applicant knowingly or unwittingly.

27. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister to conclude that the review applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

28. The Tribunal also notes the guidance concerning these matters from the Full Federal Court in the matter of Singh v MIBP [2018] FCAFC 52. In particular, the Tribunal has paid careful regard to the following guidance in that decision [at 144]:

    “Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.”

29. Having carefully considered all of the material, the Tribunal finds it highly unlikely and implausible that Ms Toto would know the dates of birth of the visa applicant and the other six children listed in the visa applicant’s application or the dates of birth of each of the parents , none of whom she was related to. The Tribunal finds it highly unlikely and implausible that she would travel from Malawi to DRC and return, a distance of approximately 3,600 km, to obtain the birth certificates from the hospital in Kavimvira, whilst she had the primary care of nine (9) children under 10 years of age.

30. In the circumstances, the Tribunal does not accept that Ms Toto had knowledge of the dates of birth of either parent, the visa applicant or the other six children listed in the visa applicant’s application. The Tribunal does not accept the evidence of the review applicant that a third party, Ms Toto, had knowledge of such information, made around trip of 3,600 km from Malawi to DRC and back to Malawi in order to obtain the birth certificate and provided this certificate to the review applicant.

31. Given that the Tribunal is not satisfied that Ms Toto had knowledge of the dates of birth of the parents, visa applicant and the other children listed in her application, the source of this information remains unclear and the information itself is unverifiable.

32. The Tribunal has considered the evidence of the review applicant in her affidavit that she was ”…shocked, disappointed and upset by the DNA test results” and her assertion  that she believed the children were biologically related to her. The Tribunal has made findings regarding the evidence given by the review applicant of the alleged knowledge of Ms Toto of the dates of birth of the children and parents, the alleged obtaining of the birth certificate by Ms Toto and hence the veracity of birth the certificates. In the circumstances, the Tribunal does not accept the evidence of the review applicant that she believed the children were biologically related to her. The Tribunal has formed the view that the review applicant has not acted honestly in relation to these matters.

33. The Tribunal finds the evidence of the review applicant in relation to these matters to be contrived and untruthful. The Tribunal finds that the provision of such contrived and untruthful evidence displays an element of fraud or deception on the part of the review applicant.

34. In the circumstances, the Tribunal has formed the view that the review applicant, in giving this information, provided false and misleading information namely as to the parentage and family composition of the visa applicant and the other six children named in the subject application.

35. Having carefully considered all the evidence, the Tribunal finds that in relation to the application documents, (Form 40CH and Form 47CH), the review applicant claimed that the visa applicant and the six children listed as her siblings were all biological siblings and were the biological children of parents. The Tribunal finds that this information was false or misleading in a material particular, in the sense that it was false or misleading at the time it was given (PIC 4020(5)(a)) and relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information (PIC 4020(5)(b)), namely, in determining the parentage and family composition of the visa applicant at the time the application was lodged.

36. Therefore, the review applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

37. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa (per: PIC 4020(4)). The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

38. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

39. Having carefully considered all the material before it, including all evidence and submissions received prior to, during and post-Hearing, the Tribunal finds that there is no evidence to indicate compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, which justify the granting of the visa. Therefore, the review applicant has failed to satisfy Public Interest Criterion (PIC) 4020(4).

100.   In the circumstances, the Tribunal is not satisfied that there are grounds to justify the waiver of PIC 4020. Therefore, the requirements of PIC 4020 should not be waived. Accordingly, the review applicant does not meet PIC 4020(1).

101.   At the Hearing, the Tribunal provided warnings to the review applicant pursuant to s.359AA and canvassed with the review applicant the withdrawn applications of the four children who were found not be biologically related to the visa applicant and to the birth certificates contained in the four withdrawn applications. The Tribunal referred to the possibility of finding those birth certificates to be bogus documents or false or misleading information pursuant to PIC 4020.

102.   Following careful consideration, the Tribunal makes no findings and draws no adverse inferences, in relation to those withdrawn applications. This is because those applications are not relevant to the visa applicant’s application or those of his two siblings, which remain before the Tribunal. Whilst the Tribunal makes reference to the birth certificates of the other four children, it is only insofar as they claim to provide evidence that they were biological siblings of the visa applicant and biological children of the parents, as claimed in the visa applicant’s own application documents. The relevant information contained in the birth certificates, i.e. the names, dates of birth and claimed joint parentage of the other four children, are listed within the visa applicant’s own documents.

Conclusion

103. Having carefully considered all of the evidence and submissions provided to the Department and the Tribunal, both documentary and oral, the Tribunal does not accept the claims in relation to the subclass 117 visa. The Tribunal finds that it cannot be satisfied that the parents of the visa applicant are deceased based on the evidence provided. As a result, the parties have not sufficiently demonstrated that the visa applicant is an orphan relative. She therefore does not meet reg 1.14(b) and hence fails to satisfy cl 117.211 of Schedule 2 to the regulations.

104.   Further, the Tribunal has found that the review applicant does not meet PIC 4020(1). As the Tribunal is not satisfied that there are grounds to justify the waiver of PIC 4020, the review applicant does not meet PIC 4020(4).

DECISION

105.   The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Edward Howard
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.