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

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.
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).
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.
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.
The delegate refused…

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 Mujinja (Migration)

Details

AGLC: Mujinja (Migration) [2018] AATA 4762
Case: [2018] AATA 4762
Decision Date: 10 October 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a case involving Mrs Mujinja, who sought Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), for four children. The dispute centred on whether these children qualified as orphan relatives of Mrs Mujinja, an Australian permanent resident, who claimed they were her nephews and nieces. The children's mother was deceased, and their fathers were unknown, but the Tribunal had to determine if the applicants met the criteria for an orphan relative visa.

The primary legal issue before the Tribunal was whether the visa applicants satisfied the requirements of clause 117.211 of the Migration Regulations 1994, which defines an "orphan relative." This involved determining if the applicants were related to Mrs Mujinja, were under 18, unmarried, and could not be cared for by either parent due to death, permanent incapacity, or unknown whereabouts. Additionally, the Tribunal had to consider if there was any compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal's reasoning focused on the definition of an "orphan relative" and the evidence presented. While Mrs Mujinja provided substantial financial support and incurred significant expenses to facilitate DNA testing, the results were inconclusive regarding her relationship to three of the four applicants. The DNA evidence indicated it was "highly likely" she was the aunt of one child but inconclusive for the others. Given the lack of definitive proof of kinship for all applicants, the Tribunal found that clause 117.211 was not met.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas, as the essential criterion of being an orphan relative of an Australian relative was not satisfied for any of the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Kate MillarMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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