Mbuzukongira (Migration)

[2018] AATA 1057

Mbuzukongira (Migration) [2018] AATA 1057 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Odette Polepole Mbuzukongira

VISA APPLICANT:  Miss Elgrady Iranzi Lysa

CASE NUMBER:  1715877

DIBP REFERENCE(S):  2015075594

MEMBER:Kira Raif

DATE:16 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 16 March 2018 at 2:10pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – Australian relative – Maternal aunt  – Visa applicant cared for by grandparents – Grandparents cannot care for the visa applicant due to their advanced age and security issues – Whereabouts of parents unknown

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 rr 1.03, 1.14 Schedule 2 cls 117.111, 117.211, 117.221

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 20 June 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of DR Congo born in August 2001. The visa applicant applied for the visa on 22 October 2015. The delegate refused to grant the visa because the applicant did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was an orphan relative of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 March 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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.

5. 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.

6. ‘Orphan relative’ is defined in r.1.14 of the Regulations. 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.

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

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form 47CH that her mother is Christine Kwitegetse and her father is Mbuzukongira Nghabo and that both were resident in Congo. (The application form indicates that the applicant referred to them as grandparents rather than parents.) However, on the sponsorship form the applicant stated that her mother is Silimu Mbuzukongira Esperance and that she was deceased, and that her father was unknown and of unknown whereabouts.

8. The visa applicant subsequently provided a statement in which she stated that her biological mother was Esperance, she did not have a father and does not know who he is. The applicant claims she grew up with grandparents Kwitegetse Christine Mbuzukongira and Mbuzukongira Nghabo Zachee. The applicant states that from 2013 she went to live with her aunt. The applicant described the circumstances of leaving Congo. The applicant claims she is unaware of the whereabouts of her biological mother. The delegate noted in the decision record that the applicant has not provided any documentary evidence that her mother went missing or any evidence of having made any attempt to find her mother, for example by approaching the Red Cross tracing service. The delegate concluded that there was insufficient evidence to find that the visa applicant’s parents were missing or of unknown whereabouts.

9. In her written statement to the Tribunal the review applicant notes that the visa applicant was cared for by her grandparents but due to their advanced age and security issues they cannot care for the child. The review applicant claims that nobody knows where the child’s biological mother is and searches by the police and the Red Cross confirm that she cannot be located. She states that the visa applicant’s mother was a victim of rape and nobody knows who the child’s father is and the child was brought up by her mother and grandparents.

10. The review applicant provided additional documentary evidence to the Tribunal. This includes evidence showing that Kwitegetse Christine Mbuzukongira and Mbuzukongira Nghabo Zachee are the visa applicant’s grandparents and not parents. There are documents concerning the security situation in the country and other personal documents. In relation to the whereabouts of the visa applicant’s parents, the review applicant provided a statement from the Red Cross dated 19 July 2017 indicating that they were unable to locate the child’s mother. The review applicant explained in oral evidence that the Red Cross searches the area where the Congolese refugees fled and the neighbouring country and they were unable to locate her. The review applicant claims that the Red Cross will keep the file open but there is little chance of the mother being located in a different area.

11. This document from the Red Cross has been verified by the Tribunal. The Tribunal accepts, having regard to the statement from the Red Cross and the review applicant’s evidence, that the whereabouts of the visa applicant’s mother are unknown.

12. The review applicant told the Tribunal that her sister was raped during the war and nobody knows the identity of the father. She said that no man came forward to claim the paternity. The Tribunal found the review applicant to be a truthful witness and is prepared to accept that evidence and accepts that the whereabouts of the father are unknown.

13. In oral evidence, the review applicant confirmed that the visa applicant was raised by her grandparents from a young age. When the grandparents could no longer care for her, she was given to another aunt who took care of her. The aunt has now migrated to Australia and the child lives in Uganda and is being assisted by a church member.

14. The review applicant’s evidence to the Tribunal is that there is no adoption available in Congo and the child was not adopted by the grandparents when they were caring for the child or by her sister who looked after the applicant later on. There is no evidence that the visa applicant was adopted by any other relative, so that neither the grandparents nor the child’s aunt can be considered as the applicant’s parents for the purpose of r. 1.14. In any case, the Tribunal acknowledges that the grandparents live in a different country in an area affected by war and that they are unable to care for her.

15. The Tribunal is satisfied the visa applicant is a niece and a relative of the sponsor. The Tribunal accepts that she was born in August 2001 and is under the age of 18. She does not have a spouse or de facto partner. The Tribunal accepts the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The review applicant explained to the Tribunal that there is no one to care for her niece at present and she lives with a church member. She said that given her niece’s age, she is vulnerable. The review applicant said that if the visa applicant migrates to Australia, she will continue to care for her and send her to school. The Tribunal is satisfied there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant. The Tribunal is satisfied the visa applicant meets r. 1.14 and is an orphan relative.

16. The Tribunal is satisfied the visa applicant is an orphan relative of an Australian relative. She meets cl. 117.211. The Tribunal further finds that the visa applicant continues to satisfy the criterion in cl.117.211. It follows that cl.117.221 is met.

    Conclusion

17. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member