Ajiba Oshang (Migration)

Ajiba Oshang (Migration) [2022] AATA 2562 (29 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Rebecca Isaac Ajiba Oshang
VISA APPLICANTS:  Ms Ajulo Okello Robert Nybaj
Ms Abang Okello Robert Nybaj
Ms Adhiero Okello Robert Nybaj
Mr Omot Okello Robert Nybaj
REPRESENTATIVE:  Ms Grace Gatbonton-Prince (MARN: 0639454)
CASE NUMBER:  1803503
DIBP REFERENCE(S):  OSF2016/030323 OSF2016030323
MEMBER:Susan Trotter
DATE:29 April 2022
PLACE OF DECISION:  Brisbane
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.

Statement made on 29 April 2022 at 4:31pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – DNA evidence – no parental care – father’s death certificate – alterations to the document – mother’s whereabouts unknown – young ages of the visa applicants – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cl 117.211, 117.221
CASES
Nguyen v MIMA (1998) 158 ALR 639
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 November 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants are citizens of South Sudan, currently residing in Sudan. The visa applicants are being sponsored by their stated aunt, the review applicant, a now 34-year-old Australian citizen. As at the time of this decision, the visa applicants are aged as follows:
Abang – 22 years of age (born December 1999)
Omot – 16 years of age (born April 2006)
Adhiero – 11 years of age (born February 2011)
Ajulo – 13 years of age (born February 2009)
The visa applicants applied for the visas on 26 April 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.
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 which requires a visa applicant to be a relative (as defined) of their sponsor and further requires the visa applicant’s parents to be either deceased or incapacitated or missing.
The delegate refused to grant the visa because the delegate was not satisfied that the visa applicants had provided satisfactory evidence that they are orphan children and were being sponsored by a relative. Amongst other things, the delegate was not satisfied that weight could be placed on the death certificate for the visa applicants’ father that had been provided because there were clear alterations to the document. Further, the delegate was not satisfied that there was persuasive evidence that the applicant’s mother was missing and her whereabouts unknown. The delegate noted that they found it particularly implausible that the oldest visa applicant would leave her country with her siblings (aged just 14, 5 and 3 at the time) with the assistance of neighbours leaving her mother and extended family behind, thus raising concerns about the credibly of the claims presented. Further, the delegate was concerned that no independent third party evidence had been presented to support the claim that the visa applicants’ mother was missing. The delegate therefore was not satisfied that the applicants’ parents were deceased, permanently incapacitated or of unknown whereabouts.
The review applicant lodged an application for review of the delegate’s decision with the Tribunal on 9 February 2018.
The review applicant appeared before the Tribunal on 12 March 2020 (in person) and 7 February 2022 (by teleconference) to give evidence and present arguments. The Tribunal also heard evidence from the review applicant’s husband, Mr Sam Agolory. The Tribunal adjourned following this hearing as requested by the review applicant in order for further DNA evidence to be obtained as regards the claimed relationship between her and the Abang and Omot. A substantial delay occurred in obtaining DNA evidence because of the COVID-19 pandemic and the difficulties of obtaining further DNA evidence where the visa applicants are currently residing. Between March 2020 and March 2022 significant liaison has occurred between the Tribunal, the Department and the review applicant and her representative in relation to the obtaining of further DNA evidence. A further hearing was held on 7 February 2022 and further DNA evidence was ultimately provided in March 2022. The Tribunal has taken into account further DNA evidence provided and further submissions in relation to the DNA evidence following the second hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the visa applicant an orphan relative of an Australian relative?
Clause 117.211 requires that at the time of application a 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. 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 issues are whether at the time of the visa application, the visa applicants were each an orphan relative of the review applicant and whether the visa applicants continue to meet that requirement now, or no longer meets that criterion solely because they have since turned 18 years of age.
The visa applicants are citizen of South Sudan currently residing in Khartoum, Sudan. It is claimed that their father, Okello Robert Nybaj, is deceased and their mother’s whereabouts are unknown.
The documentation provided to the Department and Tribunal includes as follows:
(a) Transcript of interview with Abang on 27 November 2016, including as follows:
-Her aunt sends money from Australia
-Mrs Abuela from their tribe looks after her and her siblings
-Their father died during fighting between the Nuer and Dinka in Malakai. He passed away in the war in February 2014. Her mother went missing during the fight. When the rebels entered Renk, her father was at his shop in the market. She took her siblings and with assistance of their neighbours fled to the border. Many of the other people who went to the border told them that their father had passed away. They stayed at the border for a month and when the rebels became close they were allowed to enter Sudan. They then came to Khartoum and stayed with Abuela ever since. She looks after them with the support his aunt provides from Australia.
(b) Death certificate of Okello Robert Nybaj – date of death – 23 April 2014.
(c)   Statutory declaration of review applicant dated 14 April 2016, including as follows (unedited):
…
5.I have provided their certified birth certificate issued by the Ministry of Health, Republic of South Sudan.
6.Their mother is my biological sister, Suzan Isaac Ajeba. She went missing during the fighting in Renk in February 2014.
7.When the rebels attacked Renk, both their parents were not home. Abang, the oldest, took the children and ran towards the border with their neighbours. She hasn’t been seen since that time. When they got to the border they still couldn’t find their mother.
8.After they ran away they heard from other villagers who stayed behind that their father, Okello Robert Nubaj was killed by the rebels. The rebels they took over the town after they attacked and killed people. The villagers confirmed that he was killed and buried in the village.
9.The children left together with other neighbours and fled to the border of Sudan and South Sudan. They stayed a few weeks in South Sudan until the border was opened sometime in March 2014. They have been in Khartoum since then.
10.When I went there in December 2014 I tried to find my sister but she was nowhere to be found. I went to the UN and I went to the lady looking after refugee cases and gave her my sister’s details and she promised to look for her. I told them my nieces and nephew are here in Khartoum. Her name is Amal Dhrar. She is a community services associate. Her number is …. I text her when I want to ask a question.
11.After that she referred the children’s case to Red Cross. At the end of May 2015, Red Cross in Khartoum asked Abang to come to their office to report their mother missing. She was asked what happened to their mother and she gave the details of what happened. They told her that they would keep looking for their mother.
12.I also provided a letter from the Red Cross Tracing Service in Brisbane.
13.We do not know what happened to their mother. We are hoping for the best but a lot of people died during the fighting. Other mothers who were separated from their children have made contact asking where their children are but not my sister. It is not in her nature to just leave behind her children who are still very young.
14.I stayed for 2 months with the children in Khartoum because they really need someone to help them find their mother. I have provided evidence of my trip.
15.I couldn’t stay any longer so I found someone to take care of them. She’s not a relative but she is from our tribe. Her name is Abuella and she speaks our language. The children call her “auntie”. I pay her some money every month to pay the rent and to buy them food.
16.Ever since then I have been supporting financially and emotionally. I sent them around USD$200 every month and I call them through viber every day and through Lycamobile. I have a copy of the remittances. They use this for food, rent and for tuition.
17.I usually call Abang’s number on …. Or Abuella’s number on …. I have provided my Lyca call histories.
(d) Letter from International Tracking Service, Migrant Support Programs, Australian Red Cross dated 12 February 2015 including as follows:
Letter of Involvement • Red Cross International Tracing S9rvice
The International Tracing Service aims to restore contact or to clarify the fate of missing persons who have been separated from their family members or whose relatives are unaccounted for as a result of war, conflict, disaster, migration or other situations requiring a humanitarian response.
Name of Enquirer: Samuel Agolory & wife
Name of Overseas Sought Person: Suzan Ajlba
File number: 100068
Action: Tracing Case opened with Red Cross, Australia to be actioned by South Sudan office of the International Committee of the Red Cross.
(e) Various payslips of the review applicant.
(f)    Bank and other financial documentations from the review applicant.
(g) Statutory declaration of review applicant dated 9 March 2019, including as follows (unedited):
1.I am the review applicant and maternal auntie of the visa applicants:
…
2.The children’s mother is my biological sister Suzan. I declared her in my partner visa application. Their father was Okello Robert Nybaj.
3.I believe the decision-maker did not assess my visa applications for my nieces and nephew correctly.
My original birth certificate
4.I only had a copy of my certificate. I sent my original birth certificate to the embassy in Cairo when I was applying for my partner visa. I never got the original back.
5.I am happy to undergo DNA testing to prove my biological relationship with the children.
Efforts to find my sister
6.Until now we have no news about my sister. We are really not sure if she is alive or dead. But I know that she would not abandon her children.
7.At the time of her disappearance, the children were only 8, 3 and 14 years old. If she was alive, she would try her best to find them. It is very unusual for my sister to leave her children especially in their formative years.
8.As we informed the department through my husband’s email dated 25^th May 2017, we received a follow up call from Mariano Griva Australia Red Cross asking if there was any news from our side. We said we are still looking for her.
9.The email which was forwarded to the Cairo office also mentioned that the children always asked new arrivals from the border areas if they met their mother on the way. They continue to ask new arrivals about their mother. The children miss their mother very much and want to believe that she is still alive.
10.We also tried to ask South Sudanese refugees in Ethiopia and refugee camps if she was there.
11.The case officer was not satisfied that we have not attempted to contact family members in South Sudan to ask about my sister. This is untrue.
12.When my sister went missing, the whole extended family, my parents, sisters and brothers tried to find her and they continue to look for her. I have provided a statement from my brother Okello Isaac Ajiba about his efforts in looking for Suzan.
13.I also made the effort to look for her when I went to see the children myself. I made enquiries with Red Cross and the United Nations. Unfortunately, after 2 months of looking and sorting out with the children’s care, I had to leave. I have a job and my family in Australia to look after.
14.I believe we have made a lot of effort to find my sister. It’s been almost 4 years and there is no word from her. If she was alive, she would make contact with our parents or through my siblings. She also has my contact details in Australia.
Father’s death Certificate
15.We sent an email on the 18^th of January 2017 explaining how the death certificate was obtained. We believed we provided an accurate account of how it was obtained given the situation of civil war in South Sudan. My husband was the one who went through the process of obtaining the death certificate.
Fleeing with neighbours
16.The case officer did not believe that Abang the eldest could just flee from their home with all her siblings and neighbours and walk towards Sudan to escape the violence.
17.Abang and the children fled with other neighbours who helped carry the younger children. They along with the neighbours, literally ran for their lives. People do not wait around to get killed.
18.Also whenever there is war, you can see on TV villagers fleeing their homes holding on to children and their few belongings trying to find safety. It is human nature that people will try to save children who are smaller and powerless. Good people don’t just leave children alone to get killed. They were lucky that the neighbours were able to help them.
19.If the children waited for their mother to return, they would all be dead. They made the right choice not to wait for their parents. They were lucky that the neighbours were able to help.
20.The case officer could not believe that the children crossed the border. The distance between Renk and the Sudanese border is not that far. It takes 3-4 hours on foot but only 20-30 minutes by road which is a paved road.
21.The case officer also did not believe that the children would leave without their mother and extended family.
22.Suzan and her family are the only family members living in Renk. She had no family there and her husband had no family there either. They were living there because her husband, the children’s father had a shop.
23.At that time, our parents, the children’s grandparents were in an Internally Displaced Camp in Bor town. Okello, their uncle, my brother was living in Juba.
24.Therefore, there was no immediate or extended family members living in Renk when the children became displaced.
Care of the children
25.I organised for Abuella to care for the children. I had no other relatives to look after them She is like an “aunty”, a distant relative of my mother. She has no children.
26.Although she is not a legal guardian, I can only rely on her to care for them. She is taking very good care of the children. This is common in our culture; someone taking care of other people’s children. It is just an arrangements and no document is required.
Ongoing contact
27.I haven’t stopped supporting the children. I continue to call them and send them money regularly.
28.I continue to send money to Abuella to spend on herself and the children for food, clothes, rent, school fees, transport.
29.I continue to contact them by phone and by Whatsapp.
Situation in South Sudan
30.South Sudan is in the midst of a civil war which started in 2013. Many South Sudanese have been displaced by this war. Therefore it was difficult to get documents when the government is not functioning properly.
31.We scanned and emailed the children’s birth certificates on the 5^th of September 2016 with an explanation that we lost the originals to obtain the children’s passports but it was lost in the post. We sent newly issued birth certificates on this date except for Abang’s which was sent later.
32.We tried our best to get court orders for the children. We were told that because the children are not Sudanese citizens, we are unable to obtain legal adoption.
33.The children and all the extended family knows it is me that will take responsibility for the children more than anyone there. This is because she was born right after me and I was very close to her. I feel responsible and continue to be responsible for their care.
34.I believe it is in the best interests for the children to live with me and my family in Australia where there is no war. I am also helping my parents and my siblings out so that they do not have to worry about their, safety and security.
(h) Statutory declaration of review applicant’s applicant, Mr Agolory, dated 1 April 2019, including as follows (unedited):
1.I am the review applicant’s husband and uncle of the visa applicants:
…
2.The information we submitted for the visa application and all the documents submitted are accurate and genuine.
3.The children’s father was Okello Robert Nybaj and their mother was Suzan Isaac Ajiba Oshang as we declared in their application.
4.We also declared truthfully that their father was killed and their mother went missing in 2014 when the fighting stated in Renk.
5.Since the children lost their parents, I have given my wife emotional and practical support assisting with requested documents for the visa application.
6.Sudan is an Islamic state with its rules and tradition. It is easier for me to navigate through the system and liaise with family members because it is very much a male oriented society.
Children became displaced
7.The war in South Sudan stated in December 2013 in Juba, the Bor up north and finally in Renk April 2014.
8.Rebecca’s sister and her family were in Renk at the time the rebels attacked. Some of the relatives told us that their father Robert died and that Rebecca’s sister was missing.
9.At that time the children were already at the border of Sudan and South Sudan. I rang friends in Sudan to try to get them over the border to safety and at the same time we all tried to look for their parents.
10.I got a ticket for Rebecca to see the children and to find her sister. Rebecca went there to help the children with finding accommodation and organized someone to care for them.
Efforts to find their mother
11.At the same time, I also contacted my brother-in law, Rebecca’s brother Okello Isaac Ajiba O’Shang. I sent him money to go to Renk to look for their sister in Renk. Okello also went to Red Cross in Juba to make a trace.
12.Okello is a custom officer and has a good connection there in Renk with his friends. If they had found their sister, they would tell him because he has good connections in Renk.
13.We also submitted our request to trace their mother through the Red Cross Tracing Service in Brisbane. We haven’t heard that they found her.
Children’s Birth Certificates
14.Again I sent more money to my brother-in-law when the embassy asked for the birth certificates. We went to the same town.
15.The birth certificates were sent here in Brisbane for the visa process. Then we sent the birth certificates back to them to obtain their passports. The documents were delayed for months and we thought they were lost. So I had to get new ones issued to get their passport issues.
Death Certificate of their father
16.When we were asked to get their father’s death certificate, I asked my brother-in-law, Rebecca‘s brother if it was possible to obtain the certificate years after his death.
17.Okello who is a custom office made some enquiries with the South Sudanese Ministry of Health. The ministry informed him that it is possible to issue death certificates as long as he goes to town where the deceased had passed and must have at least two witness who witnessed his burial.
18.Okello travelled to Renk and where he met two people who witnessed the burial. He told me they were: James Oguo Adawen Moneal and Daniel Ogwok Odhok Alilndit.
19.He took them to the Ministry of Health where they signed a document stating that they knew Okello Robert Nybaj and that they attended his funeral and burial. They also stated that they knew the family before the war started and that he died of a gunshot wound during the war.
20.Okello took the document from Renk and went back to Juba where the document was certified by the South Sudanese Ministry of Health. Then he sent it to Khartoum to be certified by the Ministry of Foreign Affairs. The Ministry of Foreign Affairs in Khartoum will not certify the documents unless it is issued by the Ministry of Health of South Sudan.
21.Unfortunately there was a smudge. Most documents are still hand written in South Sudan and if they made a mistake, then they have to correct it by hand. But it is changing.
22.We really tried our best to get this document. We paid for my brother-in-law to travel to Renk even though it was not safe. Normally, a death certificate is issued the next day. We were not even sure if it was even possible until my brother-in-law make inquiries to see if it was possible. He was told this was the process. He paid for the issuing of the death certificate and for the certifications as it was required.
Legal documents from Sudan
23.We tried to get a court order from Sudan. We spent money going to a lawyer and all the other agencies. We paid the court fees, the agency fees and the last process was a signature from the judge.
24.The judge read the documents and found out that they were South Sudanese nationals, he just threw the case out and made a cross (“X”) on the document.
25.He said the children are South Sudanese and he had no jurisdiction to issue a court order. Basically he said Sudan has no responsibility for these children and they can be removed any time. The children do not have legal status in Sudan because they are refugees.
(i)    Letter from File Officer, Restoring Family Links, Australian Red Cross dated 4 April 2019 including as follows:
We are currently reviewing our outstanding cases and wish to advise that we have not yet received any information from South Sudan about your enquiry to find your sister.
Our office has requested information from Juba office regarding their searches so when this is to hand we will contact you again.
(j)    Affidavit of review applicant’s father, Isaac Ajiba Oshang dated 26 June 2019 including as follows (unedited):
Abang Okel lo Robert Nybaj, female, …
…
Ommot Okello Robert Nybaj, Male, …
…
Ajello Okello Robert Nybaj , female …
…
Adhiero Okello Robert Nybaj, Female …
…
2.      That I am a South Sudanese citizen
3.      That their mother Suzan Isaac Ajiba is my biological daughter, the children's biological mother.
4.      That their mother has been missing since 2014.
5.      That our family made every effort to find her and continue to do so.
6.      That their father Okello Robert Nybaj is deceased since February 2014;
7.      That in our culture, as the closest male relative of my above -named grandchildren I have a legal right to decide where my grandchildren shall reside.
8.      That I consent of my grandchildren to travel to Australia to be with their aunt, Rebecca Oshang, an Australian Citizen and my biological daughter.
9.      That Rebecca Oshang has been Financially and emotionally supporting the children since they were orphaned.
(k)   Statement of review applicant’s brother, Okello Isaac Ajiba Oshang dated 11 February 2020 as follows (unedited):
I lost my sister Suzan Isaac Ajiba Oshang in February 2014 after the rebels attacked Renk, where my dear sister and her husband who was a grocery store owner, and well known in the town lived.
Since that day the family don't know where she is, I have been looking for her since then and working with my sister Rebecca Oshang to emotionally support and comfort our nieces and nephew.
I have travelled to Renk several times to try to find her or get information about her. I have been to refugees camps in the border area between Sudan and South Sudan hoping to find her there. I met the International Red Cross officials twice while I was in Renk requesting them to help family find our missing sister. Up to date, we have not received any positive news about where about she could be.
Until now we have no information about my dear sister, we are really not sure if she is alive or dead. Many people died during that time when the war broke out, I also know that she would not abandon her children whom she dearly loves.
At the time of her disappearance, the children were only Omot 8, Adhiero 3, Ajullo 5 and Abang 14 years old, if she is alive, she would have tried her level best to find them. It's very unusual for my sister to leave and abandon her children, especially during their formative years. No mother would abandon children so young.
It's always been my prayers since I lost my dear sister, for her to find safe and return back to be united with her children who are terribly missing her every day, especially after they loss their father.
(l)    Further statement of the review applicant dated 31 January 2022 as follows (unedited):
As far as I am concerned, all four of the children are my sister, Suzan’s and brother-in-law, Okello’s children. I was in Renk when my sister gave birth to Abang. I was sent to Renk few months after Suzan gave birth to Abang by my mother to help with babysit given the fact that both Suzan and Okello had no close relatives in town, and also, it’s Suzan’s first baby. I used to babysit and play with her, I loved her from day one. Suzan and I were more than sisters, we were friends that love and trusted each other since we were very young. Therefore, I gave a promise to my sister that if any bad thing happened to her and her husband, I would take care of her children and I will love them as my own children. My sister also promised the same to me.
Unfortunately, that’s exactly what happened, I lost my sister and we thought for a while that we also had lost her children, but thank goodness they made it Khartoum safely. Since then, I have been emotionally, financially and spiritually supporting them up to now.
I have travelled to Sudan to make them feel secure and ensure them they have me their aunt, as their adult relative. I supported them when they were mourning the death of their father comforted them when they lost their mother, which they never forget.
The children only know that their father is Okello Robert Nubaj and that their mother is Suzan Oshang. They have been raised and cared for by them as their children. The children also consider themselves as full biological siblings. They have grown up together as siblings and continue to live together as siblings in Khartoum. Even though it has been 7 years, they are still grieving about the loss of their father and still heartbroken about not knowing whether their mother is.
… Although the (DNA) result was inconclusive for Omot and Abang I strongly believe and never suspected anything less than the children being my sister’s children, and my biological nieces and nephew. That’s why I was willing to do another DNA test to conform what I believe to be the truth.
…
The current political turmoil in Sudan has placed to my sister’s children in greater danger, currently the country is in chaos as the people are continuing demonstrating for their rights while the army are forcefully trying to stop the people from raising against them.
Due to this military coup in Sudan, cities and town has lost law and order, everyone is responsible for their own protection, this has led to Ajulo being sexually abused by 3 teenagers on her way to shop, we heard this disturbing news from Abang who managed to call us for 1minutes only as the phone and the internet services are cut-off.
…
There is no other family members who can take care of the children. My parents and my brother live in South Sudan which is not safe at all. South Sudan is still in civil war, people are living in United Nations camps. There is not any security and services for those outside these camps. My parents have moved to Juba from Bor after the war forced them to take refuge in United National refugee camp in Bor in 2014, after the government forces recaptured the town from rebels. My father went back to work in the government’s own Bank, which pay them salaries every 2 to 3 months, when they he get pay, most of the times, he will just payoff is debt which he borrowed for food and rent. My mother used to farm family farm but now she can’t, it not safe to the farm anymore. They are struggling just put food on the table and pay rent.
My brother and his family are also struggling to care for his children and wife, they are also internally displace people who recently moved to Juba, he has no stable job that can support his nieces and nephew in Khartoum. I am the only relative they have who is willing and able to care for them. I also want to fulfill my promise to my sister that I would care for them if anything happened to her.
(m) Statement of the review applicant’s husband, Mr Agolory, dated 31 January 2022 as follows (unedited):
… Suzan’s children have always been part of our extended family and we always considered all four of them to be the children of Suzan and Okello. They are all siblings as they grew up together and were all raised by their parents and lived as a family in Renk.
As proof of this, we have provided some family photos.
There is a photo of Omot from our wedding held in December 2008. Another photo of our wedding shows Suzan at the back row wearing a green and black dress.
I also visited South Sudan after independence in December 2012. After my arrival I travelled by road to Bor where Rebecca and Suzan’s parent were living. I was carrying gifts for them from Australia. I spent a few days with the family then I flew to Malakal where family live for Christmas.
Then in January 2013, I travelled by road again north to Renk, to visit Suzan and the children. I had a big bag full of gifts for Suzan and the children. People would ask me why are you carrying this big bag, and would tell them, this is for Suzan’s children from Rebecca.
When I arrived Suzan, Okello and the children warmly welcomed me to their house. I gave the gift bag full of toys, clothes, and phone for Suzan. Children were very excited, especially Omot, one of his gifts was spider man costume, he loved it, he refused to take it off for days. The girls were happy for the clothes and shoes.
At the night I showed video of my family, and we start filming them at home. We still have videos of my visits to Suzan’s home.
We also added photos of Rebecca when she visited the children in January 2020 in Khartoum including a photo of their carer Abwala.
(n) Written submissions dated 31 January 2022.

The review applicant’s evidence at the first hearing included as follows:
(a) Her family comprises a number of children. She has four sisters and two brothers and a number of half siblings from her father’s relationship with a second wife. Her mother had seven children with her father, herself, her four sisters and her two brothers.
(b) Her mother and father are still living and reside in Juba, South Sudan. Her mother is nearly 60 and her father is 65.
(c)   The visa applicants are the children of her sister, Suzan, and her husband. The visa applicants’ father was killed in war in around 2014 and Suzan went missing at that time. At the time her sister Suzan and her family were living in Renk, South Sudan. Her parents were both living in Bor, which is some distance from Renk.
(d) The review applicant arrived in Australia in December 2008. She heard from home when the war started in South Sudan and then she was contacted when the visa applicants fled to Khartoum with neighbours. Most of her family members lived in South Sudan at the time, some in Malakal, some in Bor and some in Juba. Suzan and her husband and their four children were the only ones living in Renk. Her sister moved to Renk after she met her husband who was living there. Her sister was 30 years of age when she disappeared, when she last heard from. Prior to her disappearing, she and her sister had been in regular contact by phone, although it was sometimes not easy as the phone network in Renk was not always reliable. Prior to coming to Australia in 2008, she used to visit her sister and her family in Renk. Renk is not far from Khartoum. When she went to Egypt to get her visa to come to Australia, she went to Renk and spent time with her sister and her family. Prior to her coming to Australia, Suzan only had two children, Abang and Omot. Her sister became pregnant with Abang when she was in high school. She met her husband because he would often come to Khartoum on business. Her sister Suzan was only 15 when she fell pregnant with Abang. She remembers well when her sister became pregnant with Abang. Her parents were not happy. She herself was only twelve years of age at the time. Suzan’s husband was about seven years older than Suzan.
(e) As she stated in her statutory declaration of March 2019, she has had no news about her sister’s whereabouts since 2014. She does not know if she is alive or dead. The letter from the Red Cross also confirms this.
(f)    She cannot fathom, knowing what she knows of her sister Suzan’s attachment to her children, that she would have abandoned them unless something had happened to her. Her husband has assisted her in trying to find out information about her sister. Her brother, Okello, who has also provided a statement has also tried to locate their sister.
(g) She went to Khartoum in 2014 when she learned of the disappearance of her sister. Abang was very concerned and did not feel that she could tell her younger siblings what had happened to their father. She was only 14 or 15 at the time. She found out that the day she had disappeared, her sister had gone to the market to get food and had left the children at home. Abang told her that their mother just never returned. She is very grateful to their neighbours for looking after the children. Suzan’s husband was at his shop working. There are people who witnessed his death and passed on that information to others. When she went to visit the children in 2014, she made arrangements for the woman who is now caring for them to look after them and they have been with her ever since. She is a friend of her mother’s. When she went to Khartoum, she rented a house for them all.
(h) She and her sister were very close and always promised each other they would look after each other’s children if something happened to the other. She knows that would have been hard if something had happened to her – it would have been hard for her sister but she would have arranged something.
(i)    Her parents and other siblings are still in South Sudan but her nieces and nephew have not returned to them because there is still a war going on.
(j)    She remembers finding out when Abang was born. She was told by her mother. It was at Christmas time, December. When she then visited her sister and her family before she came to Australia, Omot was about one year old and Abang was about eight years old. Her sister, her husband and the two children were all living together. She visited them three times before she came to Australia in 2008. When she arrived in Australia, she wasn’t in contact with her sister straight away but after she had her own children, they talked when they could, subject to network problems.
(k)   None of the children are married or in a relationship.
The review applicant’s husband’s evidence at the first hearing included as follows:
(a) He married the review applicant in 2007. They were in a relationship for two years prior to that and he had known her family for a long time. Both of their families came from the same area in South Sudan.
(b) He knew of Suzan and knew she had been married at a very early age. Before his wife came to Australia, she often visited her sister and her family in Renk. He himself spent two nights with Suzan and her family when he visited South Sudan in 2013. They had four children at that time, the visa applicants, and they all lived together as a family, a normal Sudanese family. He always understood all four children to be the children of Suzan and her husband. He knew that Suzan became pregnant with Abang when she was in high school.
At the first hearing, the Tribunal discussed with the review applicant that the DNA evidence from January 2020 and February 2020 essentially showed that it was highly probably that the youngest two visa applicants, were her nieces but that in relation to Omot, the DNA evidence was inconclusive and that the DNA evidence suggests Abang is a sibling of the review applicant. The review applicant responded that the DNA evidence does not make sense to her. She has always known all four children to be the children of her sister, Suzan and her husband. The Tribunal discussed with the review applicant its concern that if it found that Abang was her full sibling, it would not be able to be satisfied that Abang’s parents, the same parents as the review applicant, were dead or their whereabouts were unknown, given the review applicant’s evidence that her parents were both alive and in South Sudan. The first hearing was adjourned in order to allow further DNA evidence to be obtained.
The evidence at the second hearing was that the whereabouts of the review applicant’s sister, Suzan, are still unknown and that the review applicant continues to send money for the support of the visa applicants. The review applicant repeated that she has always known all of the visa applicants to be the children of her sister, Suzan. She said that she recalls first meeting Obang when she was a new born baby and she travelled to Renk to see her sister. She also confirmed that she, at that time around 12 years of age, has no memory of her mother being pregnant at around that same time. She again confirmed her personal knowledge of Obang being her sister’s newborn baby and her seeing them both shortly after birth. The review applicant’s husband also gave further evidence at the second hearing, consistent with his evidence at the first hearing.
Further DNA evidence was provided to the Tribunal in March 2022, which was summarised in the report as follows:
1. There is very strong evidence to suggest that DNAQ-196052-S1, Rebecca Oshang, is the aunt of:
a. DNAQ-196052-S2 Abang Okello Robert Nybaj
b. DNAQ-196052-S4 Ajulo Okello Robert Nybaj and
c. DNAQ-196052-S5 Adhiero Okello Robert Nybaj
2. The likelihood ratio of the aunt/nephew relationship between that DNAQ-196052-S1, Rebecca Oshang, and DNAQ-196052-S3, Omot Okello Robert Nybaj, is inconclusive. However, the results from the sibling testing suggest that DNAQ-196052-S2, Abang Okello Robert Nybaj, is either the full or half sibling of DNAQ-196052-S3, Omot Okello Robert Nybaj. Therefore, considering this and the result stated in point 1a, Rebecca Oshang may also be the aunt of Omot Okello Robert Nybaj. Further testing with other potential relatives is recommended where possible.
The Tribunal notes the suggestion of further testing of other potential relatives. The Tribunal is, however, mindful of the very significant delays that have already been occasioned for the visa applicants, because of both the COVID-19 pandemic and because of the difficulties of obtaining DNA testing in general in relation to the visa applicants given their current residence in Khartoum.
Having had the benefit of the further DNA reports from March 2022, the Tribunal is satisfied that the weight of evidence supports that the visa applicants are the nieces and nephew of the review applicant, and the Tribunal finds accordingly.
Age – r.1.14(a)(i)
Regulation 1.14(a)(i) requires that a visa applicant had not turned 18 as at the date of the visa application. This was not a matter that was in contention for the delegate and the birth certificates provided support that each of the visa applicants were under the age of 18 at the time of the visa application. Accordingly r.1.14(a)(i) was met at the time of application and is met at the time of decision in relation to each visa applicant.
Spouse or de facto partner – r.1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The review applicant’s evidence at hearing was none of the visa applicants have had or do have a partner or spouse. The Tribunal does not have any evidence to indicate that any of the visa applicants have or continues to have a partner at the time of application and decision. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision in relation to each visa applicant.
Relative – r.1.14(a)(iii)
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.
Having had regard to all of the DNA evidence canvassed earlier in these reasons, the Tribunal is satisfied that the weight of evidence supports that the visa applicants are the nieces and nephew of the review applicant and that the visa applicants are therefore each a relative of the review applicant as that term is defined in r.1.03. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision in relation to each visa applicant.
No parental care – r.1.14(b)
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.
The Tribunal has had regard to the death certificate of the visa applicants’ father and has taken into account the delegate’s concerns given the apparent handwritten evidence or alterations to the document. The Tribunal has also had regard to all of the other evidence before it. Notably, the review applicant’s evidence has consistently been that her sister disappeared when rebels invaded Renk in 2014 and that she and her family have been advised that her sister’s husband was killed at that time. The Tribunal had the benefit of hearing sworn evidence at hearing from the review applicant and her husband and found their evidence plausible and consistent. The Tribunal accepts, as submitted, that in the circumstances of rebels invading their home town, notwithstanding their young ages, it is not at all unusual that the visa applicants fled their town with neighbours. The Tribunal has had careful regard to all of the evidence, as canvassed earlier in these Reasons, in relation to the claimed disappearance of the review applicant’s sister, Suzan, and the claimed death of Suzan’s husband. The Tribunal is satisfied that the weight of evidence consistently supports that Suzan disappeared in 2014 and her whereabouts have not been known since that time, over eight years ago and, further, that her husband passed away from a gunshot wound during fighting in South Sudan in 2014. The Tribunal is therefore satisfied that the visa applicants cannot be cared for by either parent because their father is dead and their mother’s whereabouts are unknown.
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)
Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. The visa applicants are currently living in uncertainty awaiting this visa outcome. They are being fully supported by the review applicant, who has made arrangements for a family friend to care for them in Sudan. The Tribunal is satisfied that their circumstances are precarious and that with the support of the review applicant, their best interests would be met by being granted visas to come to Australia. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision in relation to each of the visa applicants.
Given the findings above, cl.117.211 is met.
The Tribunal also finds that the visa applicants continue to satisfy the criterion in cl.117.211 now such that cl.117.221 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.
DECISION
The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicants meet 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.
Susan Trotter
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.

[2022] AATA 2562

29 April 2022

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