Mujinja (Migration)

[2018] AATA 4762

Mujinja (Migration) [2018] AATA 4762 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Annie Bulungu Mujinja

VISA APPLICANTS:  Mr Elvice Wa Kabombo Nkongolo
Ms Tegra Kabombo Fatu
Mr Ares Wa Kabombo Kayembe
Ms Jemima Kabombo Lusamba

CASE NUMBER:  1706909

DIBP REFERENCE(S):  OSF2016/046538

MEMBER:Kate Millar

DATE:10 October 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 10 October 2018 at 3:29pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – orphan relatives – nephews and nieces of the review applicant – review applicant’s sister mother of the children – sister not mentioned in review applicant’s humanitarian visa – no parental care – mother deceased – fathers of the children unknown – sent money to support children – inconsistent evidence provided by witnesses – DNA results – inconclusive evidence – decision under review affirmed

PRACTICE AND PROCEDURE – visa applicant’s unavailable to give evidence

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A, 359AA
Migration Regulations 1994 (Cth), r 1.14 Schedule 2 cls 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mrs Mujinja is a permanent resident of Australia, and arrived in Australia in 2007.  Mrs Mujinja grew up in care of her aunt and lost contact with her sister Marie Ndaya Masengo who was living in the Democratic Republic of Congo.  Mrs Mujinja said she located her sister again in 2010 and found she was living with the four visa applicants.  She says her sister died in 2011 and she wants to sponsor Elvice, Tegra, Ares and Jemima to come to Australia. 

2. The visa applicants applied for Child (Migrant) (Class AH) visas on 11 January 2016, and their applications were refused by a delegate of the Minister for Immigration on 6 February 2017 under s.65 of the Migration Act 1958 (the Act).

3. At the time the applicants applied for the visas, 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.

4. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include at cl.117.211 that the applicants are orphan relatives of an Australian relative. There is a definition of the term ‘orphan relative’ in r.1.14 that requires that the applicants have not turned 18, do not have a spouse or de facto partner and are relatives of the Australian relative. In addition the applicants must be unable to be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts and there must be no compelling reason that the grant of the visa would not be in the best interests of the applicant.

5. The delegate refused to grant the visas because the applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the parents of the visa applicants were deceased, permanently incapacitated or of unknown whereabouts.

6. Mrs Mujinja failed to appear before the Tribunal on 31 October 2017.  She appeared before the Tribunal on 21 November 2017 and 19 June 2018. The Tribunal also received oral evidence from Ms Alphosine Kalombo and Ms Arnlette Kasonga. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

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

   DELAY IN THIS MATTER

8. This matter has been plagued by delay.  On 29 August 2017, Mrs Mujinja was asked to provide information about her application. On 11 September 2017 she was advised a hearing had been listed for 31 October 2017. 

9. Mrs Mujinja’s representative initially responded to correspondence from the Tribunal stating she was on maternity leave, but was still acting for Mrs Mujinja, but then withdrew from representing her on 16 October 2017.

10. Mrs Mujinja then failed to attend a hearing on 31 October 2017.  The Tribunal was not advised she would not be attending.  Mrs Mujinja later advised she was in hospital. On being asked to provide evidence of her hospital admission, she provided a discharge summary showing she had attended for an elective procedure.   

11. As the applicants that are claimed to be orphan relatives are currently living in the Democratic Republic of Congo, and as Mrs Mujinja’s representative had withdrawn and it appeared that she may not understand the issues that need to be addressed, a preliminary hearing was held on 21 November 2017. 

12. Following the preliminary hearing, Mrs Mujinja was invited to provide:

    ·A statement about the whereabouts of each of the parents of the visa applicants

    ·If the parents are deceased, permanently incapacitated or of unknown whereabouts, a statement describing the circumstances in which each of the parents died, became permanently incapacitated or in which their whereabouts became unknown

    ·A statement about the relationship between Mrs Mujinja and all of the people to whom she sends money overseas

    ·Identification for Douglas Tshenda and a statement about his relationship to the visa applicants

    ·An English translation of the birth certificate of the visa applicants

    ·Any other information in support of the application

13. Mrs Mujinja was invited at the directions hearing to arrange DNA tests, and indicated that she was willing to do so. As no action had been taken to arrange for these tests, on 8 March 2018, Mrs Mujinja was invited under s.359(2) of the Act to provide information to show:

    ·     That she had undertaken DNA testing.

    ·     If the DNA tests have not been undertaken:

    o   Please advise whether she intended to obtain DNA test results; or

    o   The reason(s) why she no longer intended to obtain DNA test results

14. In response Mrs Mujinja said that as the applicants had to travel to Zimbabwe to undertake the testing the delay was due to the need to obtain new passports. DNA test results were provided on 29 March 2018.

15. A further hearing was held on 19 June 2018.  The Tribunal heard from Mrs Mujinja, her cousin Ms Alphosine Kalombo and Ms Arnlette Kasonga.

16. Further delay was also resulted from the Tribunal seeking to have the death certificate of the mother of the visa applicants verified by the Department of Immigration.  This request was first sent to the Department on 26 June 2018, and was again requested on a number of occasions.  The Department reported the verification of documents is difficult due to the circumstances in the Democratic Republic of Congo, and further advice on this document was not available to the Tribunal at the time of this decision. 

17. Mrs Mujinja has been requesting that this matter be finalised as she is currently supporting the visa applicants to live in Zimbabwe, and it is not reasonable to delay this matter any further.  As a result the Tribunal has made its decision on the information available to it at the time of this decision. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicants are orphan relatives of any Australian relative.

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

19. 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.

20. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons.

21. To meet the requirement in cl.117.211 that the applicants are orphan relatives of an Australian relative, the visa applicants need to be:

    ·     related to Mrs Mujinja

    ·     not have turned 18 years of age

    ·     no have a spouse or defacto partner

    ·     cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts

    ·     There must be no compelling reason to believe the grant of the visa would not be in the best interests of the applicant.

    Are the visa applicants relatives of Mrs Mujinja?

22. The requirements of cl.117.211 include that the applicants are orphan relatives of an Australian relative.  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’ includes the aunt of an applicant (r.1.03). 

23. Mrs Mujinja is the relevant Australian relative, and it is claimed she is the aunt of the visa applicants who are the children of her sister Marie Ndaya Masengo. Mrs Mujinja is an Australian permanent resident. 

24. DNA test results were provided to the Tribunal on 29 March 2018.  The test results were that it was highly likely Mrs Mujinja was the aunt of Jemima, but inconclusive about whether she was the aunt of Elvice, Tegra and Ares.

25. This information was provided to Mrs Mujinja under s.359A of the Act. Mrs Mujinja provided a written response in which she reiterated that the applicants are her biological nieces and nephews. She states she chose to undertake DNA testing despite the cost and her financial status because she had faith in the DNA testing. She relocated the four visa applicants to Zimbabwe for DNA sampling requiring her to obtain new passports for them as the government has invalidated older passports.[1]  She had paid for a guardian’s passport to travel to Zimbabwe with the applicants, and has paid for their accommodation and living expenses in Zimbabwe as well as the DNA tests.  She states she incurred large expenses because she was 100% sure the applicants are her blood relations. 

    [1] This is confirmed in articles such as that at accessed 19 June 2018

26. Mrs Mujinja submits that the DNA tests are inconclusive because the visa applicants had blood samples taken and she had a sample of her saliva taken.  She said samples should be taken of the same type from the people being tested.  Mrs Mujinja was granted an adjournment to seek further DNA tests using blood samples if she wished to do so.  Despite being requested to provide evidence that she had sought these further tests by 3 July 2018, she has not done so, and the Tribunal has proceeded on the basis of the information before it.  In the absence of any conclusive evidence that Elvice, Tegra and Ares are related to Mrs Mujinja, the Tribunal looked to other evidence. 

27. The Tribunal has requested that Mrs Mujinja make the applicants available for the Tribunal to take evidence from them.  She did not do so, and on being asked why she had not made them available to the Tribunal, she said as they are in Zimbabwe, their guardian’s mobile telephone does not work as the mobile phone was for the Democratic Republic of Congo.  She said while in Zimbabwe they use an internet café for calls and they could not use the cafe at night.  Mrs Mujinja said she does know people in Zimbabwe with a mobile phone, but that they are in the refugee camp and the applicants were in the city.

28. Failing to make the applicants available to speak to the Tribunal, despite being requested to do so, means that a significant way in which evidence could be tested was not available to the Tribunal.  It also means that the Tribunal can only proceed on the information available to it. 

29. Mrs Mujinja arrived in Australia in 2007 on a humanitarian visa with her husband. The Tribunal summonsed the file containing her visa application from the Department. In the application to come to Australia, Marie Ndaya Masengo was not listed as a sister of Mrs Mujinja. This information was put to Mrs Mujinja under s.359AA of the Act.

30. Mrs Mujinja said she listed the children of her auntie who lived with her mother and her biological brother, but did not list her sister because she was asked to list the people who she lived with.  She said because her sister had left to live with her husband she only gave the names of people in the house.  The application form requests information on brothers and sisters, whether living or deceased, including half, step and adopted relatives. This does not support her explanation.

31. Mrs Mujinja had difficulty remembering the fathers of the children.  She said Ngay Madimba is the father of Ares, Douglas Kongolo was the father of either Elvice or Ares and Kabeye was the father of Jemima and Tegra.  She has not met any of the children in person, and has only spoken to them by telephone.

32. When Mrs Mujinja came to Australia, she said she had lost contact with Marie but when talking to her auntie Lusamba, she was told they had found her sister.  She could not remember when she first spoke to her sister again, but thought it was in 2008 or 2009.  She could not recall the last time she saw her sister in person.  On being asked why she believes the applicants are her nieces and nephews, she said when she spoke to Marie in 2010 Marie said she was living with her four children.  On being asked if she sent money to her sister, she said she sent money to her through her auntie Bernadette Tshenda.  There are no receipts for money transfers sent to Marie Ndaya Masengo, although there are receipts for money transfers to other people, which Mrs Mujinja says is for the support of the visa applicants.

33. Ms Alphosine Kalombo gave evidence that she is Mrs Mujinja’s cousin.  She said Mrs Mujinja had a sister Ndaya Marie and a brother Alain Ntunga.  Ms Kalombo said she left to go to boarding school when she was 12 or 13 years old and has not seen Marie Ndaya since.  On being asked how she knew the applicants were the children of Marie, she said there are no lies between family members.

34. Ms Arnlette Kasonga was contacted by telephone. As she is not in Australia it was not possible to verify her identity or test it against any other evidence before the Tribunal. As the visa applicants were not made available to give evidence, it was not possible to corroborate her involvement with the family, other than Mrs Mujinja stating she was a friend and neighbour to Marie.  Ms Kasonga said she was a friend of Marie Ndaya.  She said Marie lived with her four children and named them as Ares, Elvice, Tegra and Jemima. 

35. There were fundamental differences between the evidence of Mrs Mujinja and that of Ms Kasonga about the reported death of Marie Ndaya and the father of any of the visa applicants.

36. Mrs Mujinja said that her aunt and Marie’s then husband, Mr Douglas Kongolo, contacted her to tell her Marie had died.  Mrs Mujinja said Mr Kongolo told her he tried his best to look for treatment for Marie but that she died and left a young baby.  Mrs Mujinja said that after Marie died Mr Kongolo took the children to her auntie and then went to look for work.

37. Ms Kasonga said that she was with Marie when she died as was Marie’s auntie.  Ms Kasonga said she was very close to Marie and they lived in the same compound but had different rooms.  She described herself as closer to Marie than a sister.  Ms Kasonga said in the time she knew her, Marie did not have a husband and that she was by herself because her husband had left her.  She said had never seen the father of any of the children.  On being asked if she would have known if Marie had a husband living with her, Ms Kasonga said that Maria did not have  husband and had given herself to the work of the Minister.  Ms Kasonga acknowledged that Marie had a baby in the time she knew her but the father of the baby was never there and that Marie would pray because of the deceptions she had suffered.

38. Ms Kasonga’s evidence was put to Mrs Mujinja under s.359AA of the Act. In particular, Mrs Mujinja was asked to respond to Ms Kasonga’s evidence that Marie did not have a husband, and advised that the difference in their evidence may result in the Tribunal not being satisfied that Mrs Mujinja was telling the truth or that Ms Kasonga was telling the truth. Mrs Mujinja said that Marie was pregnant at the time and that she was the girlfriend of Douglas. She said she spoke to the man who was the father of the baby. She said that what Ms Kasonga said could be true as he may have come in and out of the household. On being asked why she had said Douglas was with Marie when she died, while Ms Kasonga said she was present with Marie when she died, together with her aunt, and Marie did not have her husband or a father of her children with her, Mrs Mujinja said that Ms Kasonga did not know her sister in the way she suggested.

39. The lack of consistent evidence about the fathers of the children resulted in the Tribunal not being satisfied it could identify the father of each of the visa applicants with any certainty.  It did not have the benefit of any evidence from the visa applicants regarding the identity of their fathers. 

40. Mrs Mujinja provided birth certificates for the visa applicants.  These were verified by the Department, through the International Migration Organisation, as having been issued by the issuing office.  The verification notes that the documents were issued on the basis of statements made at the time of the application and no supporting documents were required to support the details in the documents.

41. The birth certificates provided to the Tribunal state that Marie Ndaya Masengo is the mother of each the visa applicants.  The father of Tegra and Jemima is stated to be Ilonga Beyeye.  The father of Ares and Elvice, as stated in the birth certificate, is Tshitala. 

42. This is different to the family tree provided by Mrs Mujinja and her oral evidence.  The family tree and her oral evidence indicated that Kasonga Kabeye is the father of Jemima and Tegra, that Ngay Madimba is the father of Ares and that Douglas Kongolo is the father of Elvice. 

43. In the absence of independent verification by DNA test results of the relationship between Mrs Mujinja and Ares, Elvice and Tegra, the Tribunal closely considered any other evidence that would corroborate the relationship between Mrs Mujinja and the visa applicants.  Mrs Mujinja did not name Marie Ndaya as her sister on her visa application.  There are no money transfers to Marie Ndaya as Mrs Mujinja says that she transferred money to her aunt and not her sister for their support.  Ms Kasonga named the four visa applicants as children living with Marie Ndaya, but given the fundamental differences in evidence between Ms Kasonga and Mrs Mujinja on important matters such as whether Marie had a husband or a father of the children living with her, it is difficult to rely on the oral evidence of either.    

44. The birth certificates of the visa applicants list Marie Ndaya as their mother but the fathers named on the birth certificates are different to those named by Mrs Mujinja. 

45. As much of the evidence leads to greater uncertainty about the nature of the relationship between Mrs Mujinja and the visa applicants, and the DNA tests did not establish they were the relatives of Mrs Mujinja, the Tribunal is not satisfied Tegra, Ares and Elvice are her relatives. 

46. As the Tribunal is not satisfied Tegra, Elvice and Ares are the relatives of Mrs Mujinja, they do not meet cl.117.211(2)(a) of Schedule 2 of the Regulations.

47. However, the DNA test results establish it is highly likely Mrs Mujinja is the aunt of Jemima, and the Tribunal finds accordingly.  It is then necessary to consider whether Jemima meets the remaining aspects of the definition of orphan relative in the Regulations. 

    Age – r.1.14(a)(i)

48. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

1. The birth certificate for Jemima provides her date of birth as 12 November 2003, which makes her under 18 at the time of the application and the time of this decision.

2. While Ms Kasonga estimated Jemima as 17 or 18 years old at the time of Marie’s death in 2011, she acknowledged this was an estimate and the Tribunal finds Jemima had not turned 18 at the time of the application and the time of this decision.    

   Spouse or de facto partner – r.1.14(a)(ii)

3. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.  While the Tribunal had some reservations about this requirement as Jemima did not give evidence to the Tribunal, there is nothing before the Tribunal to indicate Jemima has a spouse or de facto partner, and the Tribunal finds she did not have a spouse or defacto partner at the time of the application or the time of this decision. 

   Relative – r.1.14(a)(iii)

4. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.  The Tribunal has found Jemima is the niece of Mrs Mujinja. 

   No parental care – r.1.14(b)

5. 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.

6. There was a fundamental difference in the account of Mrs Mujinja and that of Ms Kasonga in aspects of the death of Marie Ndaya. 

7. At the hearing, Mrs Mujinja said she had a death certificate for Maria Ndaya Masengo.  This had not been provided to the Tribunal and Mrs Mujinja was given time after the hearing to provide the death certificate.  This was then sent to the Department in an effort to verify this document.  The Department has been unable to verify this document to the date of this decision.  In the absence of a any verification of this documents and given the differences in the oral evidence of Mrs Mujinja and Ms Kasonga, the Tribunal is not satisfied it can rely on this document in the absence of any verification of its validity. 

8. The name of Jemima’s father on a birth certificate dated 21 November 2015 is Ilonga Beyeye. At hearing Mrs Mujinja said Jemima’s father is Kasonga Kabeye.  Mrs Mujinja did not recognise the name Ilonga Beyeye.  On being asked about the wording of the birth certificate, which is in French, Mrs Mujinja acknowledged that ‘fille de’ means ‘child of’.  On the birth certificate provide ‘fille de’ is followed by ‘Ilonga Beyeye’.  Mrs Mujinja said this could be the person who signed on behalf of the hospital.  I do not accept this is the case as this name appears after ‘fille de’, and before the name of the mother Masengo Ndaya Marie. 

9. A further birth certificate was provided by Mrs Mujinja after the hearing.  Thhis birth certificate is dated 27 September 2018 and states Jemima’s father is Kasonga Kabeye.  As it was provided by Mrs Mujinja on 21 June 2018, it is difficult to see how it could be dated 27 September 2018.  It also provides a different name to the previous birth certificate dated 21 November 2015, but is consistent with Mrs Mujinja’s oral evidence that Kasonga Kabeye is Jemima’s father.

10. The Tribunal considered whether the difference in the name could be as a result of different phonetic transcriptions of the father’s name, however this was not argued by Mrs Mujinja.  The combination of the Tribunal’s difficulty with Mrs Mujinja’s oral evidence, that the date of the second birth certificate is after the date it was given to the Tribunal, and the difference in the name of the father ultimately led to it not being satisfied that this was the case. 

11. Given the inconsistency in the two birth certificates provided for Jemima, the Tribunal is not satisfied that it can identify Jemima’s father, and therefore is also not satisfied that her father is either dead, permanently incapacitated or of unknown whereabouts.   

12. As a result the Tribunal is not satisfied that Jemima meets r.1.14(b) at the time of application. It is therefore not satisfied she meets cl.117.211 of schedule 2 of the Regulations.

    Has the applicant been adopted by the Australian relative?

13. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. 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. As the Tribunal is not satisfied Jemima meet s the definition of orphan relative, it cannot be satisfied that she is not an orphan relative only because she has been adopted by Mrs Mujinja and Jemima does not meet cl.117.211(b). 

15. Given the findings above, cl.117.211 is not met by any of the applicants and the decision under review is affirmed.  There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

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

    Kate Millar
    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.