Mwito (Migration)

[2021] AATA 1834

Mwito (Migration) [2021] AATA 1834 (23 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Susan Mwito

VISA APPLICANTS:  Mr Byamungu Gachuruzi BENOIT
Miss Salama Gachuruzi SARAH
Mr Ezekiel Gachuruzi HAKIZIMANA
Miss Joyeuse Gachuruzi FURAHA
Miss Elizabeth Gachuruzi LOUISE
Mr Kado Gachuruzi JONATHAN
Mr Benja Gachuruzi BENJAMIN

CASE NUMBER:  1834313

DIBP REFERENCE(S):  OSF2016/047683

MEMBER:Grant Chapman

DATE:23 April 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named 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.

The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration with the direction that the second named, third named, fourth named, fifth named, sixth named and seventh named applicants meet the following criteria for Subclass 117 (Orphan Relative) visas:

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

· cl.117.221 of Schedule 2 to the Regulations.

Statement made on 23 April 2021 at 1.38pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – parents dead, incapacitated or whereabouts unknown – inconsistent dates on documents – father recorded as reporting births of children after his recorded death – translator’s error – included date of translation instead of date of reporting – actual reporting date before father’s recorded death – handwritten copies of typed original documents – original documents provided to tribunal – inconsistencies between versions – verification check – diplomatic post suspended because of COVID-19 pandemic – examination of documents and inconsistencies – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.111, 117.211(a), 117.221

CASE
Nguyen v MIMA (1998) 158 ALR 639

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 13 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 20 December 2016. 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 (the Regulations). Relevantly to this case, they include cl.117.211(a) “The applicant: is an orphan relative of an Australian relative of the applicant.” The definition of an orphan relative is contained in Regulation 1.14: “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 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.”

4. The delegate refused to grant the visas because the first named visa applicant (the applicant), together with the other applicants, did not meet cl.117.211(a) of Schedule 2 to the Regulations because they were not satisfied that the applicants could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts, as required by Regulation subclause 1.14(b).

5. The delegate had reached this conclusion because the applicants had stated and provided a document to show that their father passed away on 26 March 2013, whereas another document provided by the applicants indicated that the applicants’ father had appeared at the civil registry on 13 July 2016 to provide information regarding the issuing of the applicants’ birth certificates. The delegate found that the information provided in the two documents was incongruent because the applicants’ claimed father could not have appeared at the civil registry to provide information in July 2016 if he had passed away in March 2013, as claimed. This apparent inconsistency between the information and documents provided led the delegate not to be satisfied that the applicant’s father was deceased, as claimed.

6. The review applicant, Susan Mwito, first appeared before the Tribunal on 14 November 2019, to give evidence and present arguments. At the request of the Tribunal, the review applicant appeared before the Tribunal again on 31 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

7. In the lead up to the first Hearing, the review applicant was represented by her agent,  Arnela Tolic, of Oz Migration Services Pty Ltd, 103 George Street, Parramatta, New South Wales, who attended the first Hearing via telephone link. However, prior to the second Hearing, Mrs Mwito dispensed with the services of her agent and was not represented by an agent at that Hearing.

8. Prior to, on the day of and following the Tribunal Hearing, the review applicant provided to the Tribunal, documents which had not been provided to the Department of Immigration and Border Protection before the delegate made their decision. These included a submission on 12 December 2018 from the review applicant’s agent, death certificates relating to the applicants’ father and mother, documents described as Acte de naissance (Birth Certificate, in English) and a statement from the original translator of some of those documents.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is sufficient evidence to satisfy me that both parents of the applicants and in particular, their father are dead.

11. In determining the applicants’ claims, the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of sensitivity to the circumstances and difficulties applicants may face before the Tribunal, related to their particular situation.

12. The applicants and review applicant rely on written submissions and supporting evidence provided to the Tribunal and previously to the Department, together with oral evidence which the review applicant gave at the Tribunal Hearings.

13. The applicants lodged valid applications for Child (Class AH) Orphan Relative (Subclass 117) visas on 20 December 2016. The applications were refused on 13 November 2018 and an application to the Administrative Appeals Tribunal for a review of the refusals was lodged on 22 November 2018.

    Are the visa applicants orphan relatives of an Australian relative?

14. 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.

15. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. 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.  In the present case, the review applicant, Susan Mwito, is the relevant Australian relative.

16. For the reasons below, the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

17. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Of the seven of applicants, the birth date given for the oldest is 22 February 2001 and for the youngest, 11 January 2012. The birth dates given for each of the applicants is consistent across all of the relevant documentation provided, notwithstanding that there are some other inconsistencies between those documents. The birth dates of the applicants were not disputed by the Departmental delegate. I am satisfied that all seven applicants were under the age of 18 at the time of their visa applications. Further, I am satisfied that it is only because of the effluxion of time between the date of visa applications and the date of this decision that the two eldest applicants, Byamungu Benoit Gachuruzi and Sarah Salama Gachuruzi, have turned 18 at the time of this decision.

18. Accordingly r.1.14(a)(i) was met at the time of application and continues to be met at the time of this decision.

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

19. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. All of the applicants have stated and I am satisfied that, they do not have spouses or de facto partners. This was not disputed by the Departmental delegate. 

20. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of this decision.

    Relative – r.1.14(a)(iii)

21. 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.

22. I am satisfied that the review applicant, Susan Mwito, is an Australian citizen. DNA kinship testing was undertaken by Identilab Pty Ltd, Eight Mile Plains, Queensland. Samples from the applicants were tested on 30 July 2018 and from the review applicant on 14 June 2018. The probabilities that the applicants were nieces or nephews of the review applicant ranged from 92.7% to 99.6%. I am satisfied that the review applicant is the aunt of the applicants. This was not disputed by the Departmental delegate.

23. Therefore I am satisfied that the visa applicants are relatives of the review applicant (within the meaning of r.1.03 as set out above) at the time of application and at the time of this decision.

24. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of this decision.

    No parental care – r.1.14(b)

25. 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.

26. As described in paragraphs 4 and 5 above, the Departmental delegate was not satisfied that the father of the applicants, Prosper Gachuruzi, was dead. This was because documents provided as part of their applications, described as English translations of Birth Certificates written originally in French, which included the date on which their father had reported their births to the Rugari Civil Registry, recorded these reporting dates as being after the date on which it was claimed he had died. In the case of six of the applicants these documents gave the date on which their births were reported to the authorities as 13 July 2016 and in the case of the seventh, Joyeuse Furaha Gachuruzi, 16 July 2016, both of which dates were after the claimed death of their father on 26 March 2013. Consequently, the Departmental delegate was not satisfied that their father was dead on the date of visa application, 20 December 2016.

27. The review applicant’s agent, in a submission to the Tribunal dated 12 December 2018, claimed that an error of translation had been made in the preparation of the English language version of the Birth Certificates, which had been provided to the Department and that the delegate had failed to issue a Natural Justice letter seeking clarification from the applicants but instead, made a decision to refuse their applications. This claimed error had been discovered by the review applicant.

28. The agent’s submission included a handwritten Statutory Declaration from the translator in the Democratic Republic of the Congo that, in translating the documents from the original French into English, he had made the mistake of adding together the year and the time of day at which the original French language document recorded the applicants’ father as reporting their birth which, incorrectly, added to 2016, recorded as the year in the English translation, instead of the correct years, being 2006, in the case of the four older applicants and 2013, in the case of the three younger applicants.

29. The eldest applicant, Byamungu Benoit Gachuruzi,  in a submission provided to the Tribunal on 15 January 2019, in French, translated into English by an accredited NAATI translator, explained the applicants’ circumstances. The submission said that when their parents were still alive they went to the Registry Office to register all of the applicants’ births and give them names. It said that in 2013, his father was killed by criminal soldiers who lived in Kiwanja, along the road to Busendo. Their mother continued to look after them. It said that in 2016, their mother died and their uncle buried her but told him that as the eldest son, he would have to reimburse the uncle for funeral expenses. It said that the uncle made them work very hard and was violent with them. They escaped to live with their aunt Nyirabuhinja, about 50 kilometres away but their uncle found them and took them back to work to repay the debt. It said that the uncle did not want them to leave because he wanted their aunt in Australia to send him money for his personal needs and didn’t want them to go to school. It said that the uncle falsified their birth certificates so they could not leave and could not feed them after the death of their parents because he was not working. Their aunt, Nyirabuhinja, escaped again from the uncle because of the way he treated her and took with her documents, including birth certificates which their mother had given to her before she died. It said they had to stay with the uncle. Their brother-in-law, Shirambere, took them to Kampala for medical examinations, after which they fled to rejoin their aunt, Nyirabuhinja, in the Rwamwanja refugee camp in Uganda, where they were continuing to live.

30. The applicants provided to the Tribunal copies of documents from the Office of the Prime Minister of Uganda, Dated 5 December 2018, showing that they were registered with the Office as refugees from the Democratic Republic of Congo. 

31. Prior to the first Tribunal Hearing, in addition to the handwritten English language translations of the Birth Certificate documents recording the reporting, by the applicants’ father to the Civil Registry, the birth date of each of the applicants, which had been provided to the Department, the review applicant had provided to the Tribunal also what purported to be the original handwritten French language documents from which the English translations were drawn, together with typewritten English language versions purporting to contain the correct reporting dates, by having removed the addition of the hour to the year of reporting, as it was claimed occurred with the wrongly translated versions provided to the Department.

32. Having examined each of these documents at length, prior to the Tribunal Hearing, I was satisfied that the claimed addition error between the French and English language versions had occurred. However, it was evident also, from the handwriting, that the handwritten French language versions purporting to be the original Acte de naissance and the handwritten English language versions, headed Birth Certificate, had both been completed by the same person. It was evident also that Seyanga Kalikumutima, described as the Registrar of Civil Status, who had signed the French language documents, was the person who had provided the English language translations and the Statutory Declaration declaring that he was the translator who had made the error in dates. All three documents were in his handwriting. The signatures were identical on all three documents. These translations had not been done in Australia by a NAATI certified translator.

33. Given these facts, at the Tribunal Hearing, I expressed my concern to the review applicant about the veracity of these documents. I questioned her about whether the French language versions were, in fact, true copies of the original birth reporting documents. The review applicant told me that they were not photocopies of the original but rather, the translator had handwritten in French the information from the original documents onto new documents which were those provided to the Tribunal and then translated those documents from French into English, which were the documents provided to the Department and to the Tribunal. She said that the typewritten English language corrected versions provided to the Tribunal had been translated from the handwritten French “Kalikumutima” document in Australia by the NAATI certified translator identified in the accompanying stamp on those translations. The review applicant was unable to explain how it came about that the purported Registrar in Rugari had been the translator of the handwritten English translation and why he would have made a hand written copy in French before translating it into English, rather than translating direct from the original document into English.

34. After reiterating the events described in the statement of Byamungu Benoit Gachuruzi in paragraph 29 above, the review applicant told me that the applicants had escaped from their uncle to live with their aunt, who was  his estranged wife, in the Ugandan refugee camp late in 2018. She said that she believed that the documents had been provided by the applicants’ uncle, whom she described as the brother of the deceased father of the applicants, who had mistreated them and that he may have obtained these documents corruptly with a view to frustrating the attempts of the applicants to move to Australia.

35. Given the applicants’ written evidence that their aunt, Nyirabuhinja, described by the review applicant as the wife of the uncle, had taken with her birth certificates which the applicants’ mother had given to the aunt, when she left her husband in Congo and eventually arrived in Uganda, I asked the review applicant to provide these original documents. Photocopies of these documents were provided to the Tribunal on 26 February 2020.

36. I undertook a thorough examination of these documents, provided to me as, purportedly, the original birth reporting documents for each of the applicants. I undertook also, a detailed comparison of them with all of the documents provided previously.

37. These documents were typewritten, where as the previous documents provided to me, purporting to be the original French language documents, were handwritten. I note that this is consistent with the explanation provided to me by the review applicant, described in paragraph 33 above. However, it remains a mystery as to why that was the process followed.

1. More significant and of concern to me was the fact that there were a number of inconsistencies in the information contained in these latterly-provided documents, compared with documents provided previously, including differing inconsistencies between different applicants’ documents. These inconsistencies included: the office at which registration/notification of the births occurred; the certificate, volume and folio numbers of the documents; the date on which registration/notification occurred, between even the latter documents and the typewritten, supposedly corrected previous documents; the name of the Registrar; a clearly identifiable difference in the handwritten signature of the father, Prosper Gachuruzi; and where Kalikumutima is shown as the Registrar on both the former and latter documents, a clear difference in his written signature. One consistency between all of the documents was the dates of birth of the applicants.

2. Consequently, I determined that a document verification check was required to assess the genuineness of either the former or latter sets of documents. I prepared a detailed matrix, which included column headings of each applicant’s name; the document to which each line related; the principal office and secondary office at which registration occurred; the certificate, volume and folio numbers; the registration date; the Registrar’s name; the registration informants name; and a column identifying whether the signatures of the Registrar and the informant were the same or different in the former and latter documents.

3. A covering letter explaining the nature of the various documents and my concerns, together with the above matrix and copies of all of the documents, was sent to the Department on 3 March 2020, with a request that a verification check be conducted as to the genuineness of one or other of the sets of documents. On 11 March 2020, the Tribunal received a response from the Department that it would definitely be able to undertake the verification check and that the Australian diplomatic post in Nairobi, Kenya had been provided with the information and requested to undertake the check.

4. On 19 March 2020, the Tribunal received a further response from the Department which included a communication from the post in Nairobi that it was non-operational because of the coronavirus epidemic, was unable to advise a timeframe as to when the verification check could be undertaken and that we should follow-up in the future to obtain an update.

5. During the subsequent eleven months, the Tribunal periodically requested of the Nairobi post, via the Department, information as to when the verification checks would be conducted and was advised on each occasion that it was not yet possible. On 16 February 2021, the Tribunal was advised by the post, via the Department, that IOM verification remains suspended and the post has no ability to undertake verifications.

6. Given the delay of almost a year in being able to finalise this case because of the inability of the post to undertake verifications and no indication of when this might be possible, I determined that notwithstanding the inability to obtain this crucial information, a decision needed to be made on the appeal. A second Tribunal Hearing was scheduled for 17 March 2021, to enable me to question the review applicant about my concerns regarding the identified inconsistencies between the former and latter documents, as well as some other aspects of the case. The review applicant’s agent advised that she, the agent, would be unavailable on that date and sought a postponement. The Hearing was rescheduled for 31 March 2021. In the interim, the agent advised the Tribunal that the review applicant had dispensed with her services.

7. The second Tribunal Hearing occurred on 31 March 2021.

8. At the outset of the Hearing, I sought from the review applicant an update on the current status and circumstances of the applicants. She said that they continued to live in the refugee camp in Uganda with their aunt. She said that Benjamin Gachuruzi had been in hospital since September 2020 as a result of a severe reaction to yellow fever vaccination. It had been required for him to be fed through tubes but he was showing signs of improvement and was expected to be able to feed orally from April 2021.

9. I drew to the attention of the review applicant my concerns about the inconsistencies between the birth reporting documents provided on 26 February 2020 and those provided previously. I explained my attempts to obtain document verification, thwarted by the coronavirus epidemic.

10. Having received only copies on 26 February 2020 of the latter documents, I asked the review applicant whether she had the actual original documents, rather than copies. She said that the applicants’ aunt in Uganda had sent her the originals of the latter documents and provided them to me for perusal. It was evident, from my examination of these documents, that they were originals and not copies, being on original paper and containing original signatures, among other features.

11. I asked the review applicant whether she could explain why there were inconsistencies and discrepancies between these documents and those provided in the first instance to the Department and subsequently, to the Tribunal, before the first Tribunal Hearing. She referred again to the first sets of documents having been provided by the applicants’ uncle, who had mistreated them and who may have deliberately, fraudulently, sought and obtained incorrect documents to prevent the applicants from departing for Australia.

12. (a) At the time of the first Tribunal Hearing, apart from the written submissions of the review applicant’s agent and the eldest applicant, the only evidence of the death of the applicants’ parents were typed English language photocopied documents, which had been provided in the first instance to the Department. In each case, they were headed, in the top left-hand corner: Democratic Republic of Congo, Ministry of Public Health, Rutchuru (sic) Health Centre but with the address on that relating to the father showing as P.O.Box: 203 RCH, Phone [phone], while that relating to the mother had an address P.O.Box: 74 Goma, purportedly for the same Rutchuru (sic) Health Centre. In each case, under that, was a heading, Attestation of Death Certificate.               (b)  In the case of the father, there was a statement underneath: I, the undersigned, Dr Kambale Kahongaya Byalemawa, hereby certify the death of Mr Gachuruzi Prosper, who died as a result of bullets shots in the chest in Busendo/Kiwanja. The immediate cause of his death was the excessive and severe bleeding, as a result of increased high blood pressure, clots in the arteries in his body. The certificate is hereby authorised and issued for evidence and record purposes. Under that was typed: Signature of authorisation: Dr Kambale Kahongya Byalemawa, Senior public health specialist (SPHS), with an illegible handwritten signature and date 26/03/2013 and stamp from which it was possible to read, in French, Republique Democratique du Congo, Territoire de Rutshuri, (Illegible) de Swisha, Province du Nord-Kivu.   (c) In the case of the mother, under the headings, there was a statement, I the undersigned RN Mukeshimana Babona Juliette, hereby certify the death of Uwimana Godilliva (sic) who died due to severe Plasmodium Parasites (PPM-- Malaria). The cause of her death was due to lack of blood in the body, causing anemia (sic) and due to Emolysis which destroyed the blood cells. This certificate letter is hereby authorised and issued as evidence and record purposes only. Under this was typed Signed by: The RN Mukeshimana Babona Juliette, with an illegible handwritten signature and date 14/09/2016 and stamp from which it was possible to read, in French, Republique Democratique du Congo, Territoire de Rutshuri, (Illegible) de Swisha, Province du Nord-Kivu.

13. (a) I asked the review applicant whether she had original, French language Death Certificates. Her agent responded that she had sent copies of Death Certificates to the Tribunal. I advised that, if she had done so, they had not been received by the Tribunal. I called a short adjournment of the Hearing while she sent the documents and I retrieved them from Registry. On examining the documents, I found that they were not original French language Death Certificates but English language documents similar in nature to those described in paragraph 49 above but different in sufficient respects to conclude that they were, in fact, different documents from the above.   (b) In this case, the top left-hand corner of the typewritten documents, relating to both the father and the mother had: DRC of Congo, North Kivu Region, Rutschuru (sic) Health Centre, P.O. Box: 2037 RHC, Phone: [phone], adjacent to which was a medical type symbol, with the Congo flag in the top right-hand corner of each document. Centred underneath was a heading: Republic Democratic of Congo, Ministry of Department of Health, Attestation of Death Document.   (c) Under that, in the document relating to the father, a statement: I, the undersigned, Dr Mukesha Babona, certify the death of Gachuruzi Prosper Ndayishimiye who died as a result of bullets shot in the chest on 21 February 2016 in Rutshuru Town, DRC. The immediate cause of his death was the excessive bleeding, as result of increase of high blood pressure, clots in the arteries in his body. This certificate is hereby authorised and issued for evidence and record purposes. Under that was typed: Signature of authorisation: Dr Mukesha Babona and a signature distinctly different from that of Mukeshimana Babona Juliette, whose name and signature were on the Attestation of Death Certificate for the applicants’ mother described in paragraph 49 above. Under the name and signature were the words Medical General Practitioner and stamped words Ministry of Health, Rutshuru/DRC and a separate date stamp 21 February 2016.   (d) In the document relating to the mother, there was a statement: I, the undersigned, Kambale Kahongya Byalemawa, certify the death of Uwimana Godiliva Bizeze, died on 07 May 2013 with severe Plasmodium Parasite PP (Malaria). The cause of her death was a lack of enough blood in the body, causing severe anemia (sic) due to Emolysis which was the destruction of blood cells. The certificate letter is hereby authorised and issued for evidence and record purposes only. Under that was typed: Signed: DR Kambale Kahongya Byalemawa and under that, Senior Public Health Specialist (SPHS) and a signature distinctly different from that of Dr Kambale Kahongya Byalemawa, which was on the Attestation of Death Certificate for the applicants’ father described in paragraph 49 above. Under that were the same stamped words as in the father’s document, Ministry of Health, Rutshuru/DRC and a separate date stamp 07 May 2013.

14. (a) In summary, at the time that the first Hearing was conducted, the applicants/review applicant had provided to the Department and/or the Tribunal two differing English language documents attesting the death of the applicants’ father and two differing English language documents attesting the death of the applicants’ mother. In each case, the two differing documents provided, almost word for word, the same reasons for the deaths and purported to be from the same location, the Rutshuri Health Centre, a government organisation.               (b) However, in the case of the father, the document supplied to the Department, while not specifying a date of death, purports to have been signed on 26 March 2013, giving rise to the logical conclusion that the date of death was prior to that whereas, the document supplied to the Tribunal, on the date of the first Hearing, specifies 21 February 2016 as the date of death and purports to have been signed on that date.   (c) Conversely, in the case of the mother, the document supplied to the Tribunal, on the date of the first Hearing, specifies the date of death as 7 May 2013 and purports to have been signed on that date, whereas the document supplied to the Department, while not specifying the date of death, purports to have been signed on 14 September 2016. Of course, this does not preclude the mother’s date of date death being as early as 2013 but the more likely conclusion is that it was some time in 2016, if not September 2016.

15. Furthermore, the document supplied to the Department relating to the father was purportedly signed by Dr Kambale Kahongya Byalemawa, 26 March 2013, who also purportedly signed on 7 May 2013 the document supplied to the Tribunal relating to the mother. The document supplied to the Department relating to the mother was purportedly signed by RN Mukeshimana Babona Juliette on 14 September 2016, whereas the document supplied to the Tribunal relating to the father purportedly was signed by a person of similar but not exactly the same name, Dr Mukesha Babona, on 21 February 2016. Given the slight difference in names, I accept the likelihood that two different Babona’s, perhaps who were siblings or husband and wife, signed the purported 2016 documents, one with the pre-nominal RN, a female and most likely a registered nurse, while the other, with the pre-nominal Dr, most likely a male, medical practitioner. Given the distinctly different signatures on the documents purportedly signed by the same person in 2013, I have concerns about who actually signed these documents.

16. After receiving the second pair of attestation of death documents during the brief adjournment of the first Hearing and comparing them with the documents which had been provided to the Department, on resumption of the Hearing, I raised with the review applicant my concerns about the inconsistencies between the two sets of documents. She was adamant that the father of the applicants had been killed by rebel soldiers in 2013, while their mother, her sister, had died from malaria in 2016, as described in the documents provided to the Department. She was unable to explain the discrepancy between these documents and those provided, a few minutes before, to the Tribunal. She said that, as with the birth registration documents, the document relating to the deaths had been obtained through the uncle who had mistreated the applicants. I told her that I needed to see original death certificates, to enable a proper assessment, not copies and she told me that she would try to obtain them.

17. (a) On 15 January 2020, the review applicant delivered to the Tribunal Registry original French language typewritten documents described as Acetes de Deces (death certificates) . She was requested to provide certified English language translations of these documents and these were received by the Tribunal on 27 February 2020. For the document relating to the father of the applicants, the type written English language translations contained the following:  In the top left-hand corner of the document was: Democratic Republic of Congo, Ministry of Public Health, Rutshuru Health Centre, P.O.Box 71 C.B.C.A., Tel: [phone]. Centred under that was: Death Certificate and sequentially under that was: Name of deceased: Prosper Gachuruzi; Date of birth: 25/05/1968; Date of death: 26/03/2013; Address: Rugari Nangamurimbo DRC; Spouse of: Uwimana Godiliva; Child, Place and Date of Birth: after which was listed the primary Christian name of each of the seven applicants, where they were born, being Rugari Nangamurimbo DRC, their respective birth dates and sex. Under that was typed: Cause of death: Prosper Gachuruzi was killed by a gunshot to the left of his heart causing bleeding in the aortic area and an important loss of blood; Issued in Rutshuru on 26/03/2013; before us: the Medecins sans Frontieres (MSF) (Doctors without Borders) organisation in Rutshuru. Doctor: Kambale Kahongya Gaspard; Nurse assistant: Maombi Malyabo Dativa; The Informant (signature); Medical Doctor (stamp and signature). A statement and stamp at the bottom indicated that the document had been translated from French into English in Australia by Jean–Jacques Portail, NAATI certified translator on 25 February 2020.   (b) This English language translation accurately reflected the original French language Actes de Deces (Death Certificate) and additionally included the Congo flag in the top left-hand corner and a stamp to the right, which included the words Republique Democratique Du Congo, Territoire De Rutshuru and to the extent that was legible, what appeared to be the words Parquet de Grande, Instance Du N-Kivu, Goma. Printed through the stamp were the numerals 000192. At the bottom, there was a signature next to the name of the Aide Infirmiere (nurse assistant) and a signature under Le declarant (The Informant), under which was a stamp worded: Medecins Sans Frontieres Doctors Without Borders, including logo, within which was handwritten: Medical Dr and a signature, legible as three initials KKG.

18. (a) The structure and information in the English language translation death certificate document delivered to the Tribunal on 27 February 2020, relating to the mother of the applicants, was identical to that of the father but giving the relevant different personal details: Name of deceased: Uwimana Godiliva; Date of birth: 30/01/1971; Date of dearth (sic): 14/09/2016;  Spouse of: Prosper Gachuruzi; Cause of death: Uwimana Godiliva died from a severe case of malaria aggravated by anaemia which provoked a blood insufficiency in her body. Issued in Rutshuru on 14/09/2016. Doctor: Gahimo Maso Joseph; Nurse assistant: Mukeshimana Babona Juliette; The Informant (signature) MSF Medical Doctor Gahimo M Joseph (stamp and signature); and the same NAATI translation certification.   (b) The structure and information on the original French language Actes de Deces (Death Certificate), with the exception of the above different personal details, was identical to that of the applicants’ father. The numerals printed through the stamp were 000248. The signature of the Aide Infirmiere (nurse assistant) bore some resemblance to that of Mukeshimana Babona Juliette whose signature appeared on the English language Attestation of Death Certificate provided originally to the Department.

19. In summary, there are particular inconsistencies evident between different sets of Death Certificates and between different sets of documents recording the births of the applicants.. In such circumstances, the coronavirus induced absence of the capacity for document verification to be undertaken, makes a decision on the appeal problematic.

20. I am satisfied with and give some weight in favour of their appeal to the written and oral evidence of the applicants and review applicant regarding the death of the applicants’ parents and the applicants’ subsequent circumstances, including their flight to Uganda and continuing life there as refugees, confirmed by documentation.

21. I am satisfied with and give substantial weight in favour of their appeal to the fact that the only original documents which I have sighted physically, relating to the registration of the births of the applicants, described in paragraphs 35 to 38 above, all record the dates of registration as occurring in 2005, 2006, or January 2013, prior to any of the conflicting dates, in either 2013 or 2016, given as the dates of death of the father in the inconsistent Death Certificates.

22. I am satisfied and give some weight in favour of their appeal that, irrespective of the veracity or otherwise of the hand written English translation of the document recording the registration of the births of the applicants, which was provided to the Department with their application, that translating the year of their birth registration as 2016 was an error of translation from the hand written French language copy, irrespective of the veracity of that copy.

23. (a) I am satisfied with the fact that the only original Death Certificates, which I have sighted physically, relating to the death of the applicants’ parents, declared that their father died on 26 March 2013 and that their mother died on 14 September 2016.    (b) I am satisfied that this is consistent with the copies of the English language Attestation of Death Certificates provided originally to the Department and with the written and oral evidence of the applicants and review applicant.   (c) Consequently, I give substantial weight to these facts, in favour of their appeal.

1. (a) I have some concerns that documents have been provided to the Tribunal relating to the dates of the  deaths of the applicants’ parents and to the detail about the registration of their births which are inconsistent with the information with which, as described in paragraphs 57 to 60 above, I am satisfied.   (b) I give modest weight against their appeal, to these concerns.

2. On the evidence before me, I am satisfied that at the time of visa application and at the time of this decision, both the father and the mother of the applicants had died and therefore, they could not be cared for by either parent because both parents were dead.

3. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

   Best interests – r.1.14(c)

4. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of visas would not be in the best interests of the visa applicants. On the evidence before me, I am satisfied that there is no compelling reason to believe that the grant of the visas would not be in the best interests of the applicants. On the contrary, given the current location of the applicants in a refugee camp, there is reason to believe that the grant of the visas would be in their best interest.

5. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

6. Given the findings above, cl.117.211 is met.

7. The Tribunal finds that the first and second named visa applicants do not continue to satisfy the criterion in cl.117.211, but only because the visa applicants have turned 18. It follows that they meet cl.117.221.

8. The Tribunal finds that the third, fourth, fifth, sixth and seventh named visa applicants continue to satisfy the criterion in cl. 117.211. It follows that they meet cl.117.221.

9. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

   DECISION

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

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

    ·cl.117.221 of Schedule 2 to the Regulations.

11. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the second, third, fourth, fifth, sixth and seventh named visa applicants meet the following criteria for subclass 117 (Orphan Relative) visas:

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

    · cl. 117.221 of Schedule 2 to the Regulations.

    Grant Chapman
    Senior 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.