Bul (Migration)

[2024] AATA 20

Bul (Migration) [2024] AATA 20 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bul Deng Bul

VISA APPLICANTS:  
Mr Kuol Chol Deng Bul
Miss Achiik Chol Deng Bul
Miss Adhieu Chol Deng Bul
Mr Stephen Bul Chol Deng
Mr David Bul Chol Deng
Mr Kuer Chol Deng Bul

REPRESENTATIVE:  Mr Andrew Rouyanian (MARN: 9359622)

CASE NUMBER:  1914555

HOME AFFAIRS REFERENCES:             OSF2016046983 OSF2016046986 OSF2016046988 OSF2016046987 OSF2016046984 OSF2016046985

MEMBER:Andrew McLean Williams

DATE:3 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 03 January 2024 at 4:44pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of two parents – DNA testing – Dinka tribal customary practice in South Sudan – financial support – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.04, 1.14

CASES

Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a set of decisions, each substantially the same, as made by a Delegate of the Minister for Home Affairs on 2 April 2019 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The review applicant is Mr Bul Deng Bul, an Australian citizen of South Sudanese origin who now claims to be the paternal uncle of the six visa applicants, who are each claimed to be the children of Mr Bul Deng Bul’s deceased brother, the late Mr Chol Deng Bul. 

3. Mr Chol Deng Bul, a Dinka Tribesman, lived in South Sudan and had two wives, Mrs Alakiir Chol Ajak, and Mrs Achol Duot Ayiei, who are each claimed to be the mothers of three of the six visa applicants. 

4. Mr Chol Deng Bul and Mrs Achol Duot Ayiei were killed in civil war fighting in South Sudan on 20 December 2013.  Meanwhile, Mr Chol Deng Bul’s other wife, Mrs Alakiir Chol Ajak also went missing in 2013 and has not been heard from since that time such that she is also presumed to be dead. 

5. The six visa applicants, as children, were taken to reside in comparative safety in Kenya whereafter they have been supported financially from Australia by Mr Bul Deng Bul, on the basis that they are accepted by him as the children of his late brother and as persons to whom he has a moral obligation.  

6. The six visa applicants each applied for the visas on 13 June 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.

7. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly to this case, they include clause 117.211 and clause 117.221, which each require that the visa applicant be the ‘orphan relative’ of an Australian relative.

8. For purposes of this visa category, ‘relative’ is defined in the regulations to mean either a “close relative”, or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. In this case Mr Bul Deng Bul claims to be the Australian relative for purposes of clause 117.211 in the Regulations of each of the six visa applicants on the basis that he is their paternal uncle.

9. A person may also qualify as a relative under the above definition circumstances in which they are an adopted child.   In this regard, Regulation 1.04 provides

   Regulation 1.04 Adoption

   1.04(1)A person (in this regulation called the adoptee) is taken to have been adopted by a   person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

   (a)formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

   (b)formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

   (c)arrangements entered into outside Australia that, under sub-regulation (2), are taken to be in the nature of adoption.

   (2)For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

   (a)arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

   (b)the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

   (c)the Minister is satisfied that:

   (i)     formal adoption of the kind referred to in paragraph (1)(b):

   (A)was not available under the law of the place where the arrangements were made; or

   (B)was not reasonably practicable in the circumstances; and

   (ii)    the arrangements have not been contrived to circumvent Australian migration requirements.

10. In each case, the Delegate refused to grant the visas because each visa applicant did not meet either of clause 117.211 or clause 117.221 of Schedule 2 to the Regulations because DNA testing conducted in late 2018 had revealed no biological evidence to support Mr Bul Deng Bul being the paternal uncle of the visa applicants, and because:

    -there were no claims of adoption under Australian law (regulation 1.04(1)(a));

    -no evidence of formal adoption under South Sudanese law (regulation 1.04(1)(b)); and

    -inadequate evidence of informal customary adoption in circumstances in which either formal adoption was not available or was not reasonably practicable in all the circumstances (Regulation 1.04(2)(c)(i)). 

11. In relation to the particular question of customary adoption in accordance with Dinka Tribal custom the Delegate had observed:

    “Regulation 1.04(2)(c)(i)(A) and (B) require that, for arrangements to be considered in the nature of adoption and for customary adoption to be considered to have taken place, the Minister must be satisfied that formal adoption is not available under the law of the applicant’s home country and was not reasonably practicable in the circumstances.

    No information has been presented with the application to demonstrate that formal adoption was not reasonably practicable in the circumstances. I am therefore not satisfied that formal adoption under the law of South Sudan was not available to the parties involved prior to the commencement of this visa application. I therefore find that regulation 1.04(2)(c)(i) is not met.

12. As becomes apparent from analysis of the above quoted passage from the Delegate’s decision and comparison of it against the actual wording used in Regulation 1.04(2)(c)(i), the Delegate erroneously replaced the disjunctive “or” with the conjunctive “and” - in the sense of having expressed that the Regulation requires both that adoption (in this case) under the law of South Sudan be ‘unavailable’ and ‘not reasonably practicable in all the circumstances’.  This is not the case, as the regulation - as excerpted - expresses these to be alternatives. 

13. In this case the Tribunal proceeds on the premise of DFAT information, which is to the effect that there is no legal adoption regime in South Sudan, yet that customary adoption is nonetheless accepted and is widespread, because of civil war.  This fits within regulation 1.04(2)(c)(i)(B), as now set out above.

14. Mr Bul Deng Bul appeared before the Tribunal on 28 November 20923 by means of video-link from his legal representative’s office to give evidence and present arguments. He was represented in relation to the review by Mr Andrew Rouyanian, solicitor, of ‘Australink Alliance’ Lawyers & Migration Consultants.

15. Mr Rouyanian also accompanied Mr Bul Deng Bul during the Tribunal hearing, and had submitted written submissions and supporting evidence prior to the hearing.  These submissions were received by the Tribunal on 21 November and 24 November 2023.

16. For the following reasons, the Tribunal has determined that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. Until the receipt of the DNA results Mr Bul Deng Bul had always proceeded on the assumption that the six visa applicants were the biological children of his late brother and hence are his nephews and nieces.

18. In light of the DNA testing that has more recently revealed that it is improbable that the six visa applicants are biologically related to Mr Bul Deng Bul, the issue in the present case becomes whether the six visa applicants are instead adoptive children under Dinka tribal customary practice in South Sudan of the late brother of the Review Applicant, such that the Applicant Mr Bul Deng Bul may still claim to be their paternal uncle - and hence an ‘Australian relative’ - for purposes of clause 117.211 and 117.221 in Schedule 2 of the Regulations.

    Are the visa applicants orphan relatives of an Australian relative?

19. Clause 117.211 requires that at the time of application each of the visa applicants is an orphan relative of an Australian relative (clause 117.211(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (clause 117.211(b)). The visa applicants must continue to satisfy that criterion at the time of decision, or not do so only because they have turned 18 years of age: clause 117.221.

20. ‘Orphan relative’ is defined in regulation 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: clause 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): regulation 1.03.  In the present case, Mr Bul Deng Bul, is the relevant putative “Australian relative”.

21. At the outset the Tribunal records that it is satisfied that Mr Bul Deng Bul is an Australian citizen, resident in Australia. 

22. The Tribunal accepts the oral and statutory declaration evidence of Mr Bul Deng Bul that he is the younger brother of Mr Chol Deng Bul (deceased).  Similarly, the Tribunal accepts the validity of death certificates obtained from the Republic of South Sudan Ministry of Health for Chol Deng Bul and his second wife Achol Duot Ayiei, which indicate that each of them died by gunshot on 20 December 2013.  The Tribunal further accepts the evidence from the Review Applicant that the first wife of Chol Deng Bul, Mrs Alakiir Chol Ajak has been missing since 2013, that her whereabouts remain unknown and that she too is now presumed to have been killed in civil war fighting in South Sudan.

23. In his statutory declaration Mr Bul Deng Bul declares that he believes that each of Kuol Chol Deng Bul, Stephen Chol Deng Bul and Achiik Chol Deng Bul are the children of his late brother’s first wife Mrs Alakiir Chol Ajak; and that each of Kuer Chol Deng Bul, Adhieu Chol Deng Bul and David Bul Chol Deng Bul are the children of his late brother’s second wife, Mrs Achol Duot Ayiei. The statutory declaration then goes on to declare:

    12.I sent the money to Atem John Manyok in South Sudan in order to take the children of my brother in [sic] Kenya.

    13.I therefore, pay for the expenses and costs [of] living while these kids stay in Kenya since 2013 until now.

    14.I am very certain that these six children are my brother children from his two wives. Also, in a South Sudanese culture whoever is alive in the family is always in charge responsible for the kids or women that is left behind without a husband.

    15.Therefore, it is my responsibility as uncle to look after these children. This is why I am taking care of them since my brother was confirmed killed back in 2013.

    16.Therefore did not make any false assertions or allegations in the sponsorship application that has been lodged as I genuinely believed that these children were the children of my late brother.

    17.It would appear that they are not; however, I accept them in accordance with our customs that these children are my brother’s children therefore I have been looking after them since my arrival in Australia and I learned of their whereabouts since I learned that my brother was killed in 2013.

24. As indicated, DNA test results suggest that the six visa applicants are not the biological descendants of the late Chol Deng Bul.  However the evidence available to the Tribunal from the Review Applicant is that the six visa applicants were members of the patriarchal family unit in South Sudan that had been headed by Chol Deng Bul, who is accepted by the Tribunal as the brother of the Review Applicant, Mr Bul Deng Bul.  The Tribunal now accepts that the six visa applicants were each members of the family unit in South Sudan that had been headed by the late Chol Deng Bul.

25. Open source information presented to the Tribunal by the Review Applicant in support of this Application for Review supports the fact of informal adoption being a widespread practice in South Sudan as part of Dinka customary law and of extended family taking care of orphaned children and widows. 

26. In a letter of support dated 13 November 2023 from Mr Thiew Atem the general secretary of the Sudanese Community Association of Queensland Mr Atem supports the Review Applicant’s contention that orphans are adopted or cared for by extended family in South Sudan.  On this basis the Tribunal is prepared to accept on the balance of probabilities that the late Chol Deng Bul adopted the six visa applicants.   

27. For purposes of Regulation 1.04(1)(c) of the Regulation the Tribunal needs to be satisfied that an arrangement has been entered into in South Sudan “in the nature of adoption” in accordance with usual practices or a recognised custom of the Dinka Tribal culture of the adopter (the late Mr Chol Deng Bul) and the six visa applicants. On the basis of the available evidence the Tribunal records that it is now so satisfied. Further, the Tribunal records that is satisfied that formal adoption was ‘not available’ under the law of South Sudan or conversely ‘not practicable’ given the circumstances of civil war that have been prevalent in that country.  The Tribunal further records that, for purposes of regulation 1.04(2)((c)(ii), the Tribunal - now standing in the shoes of the Minister - is satisfied that these arrangements have not been contrived so as to merely circumvent Australian migration requirements.

28. The Tribunal is further satisfied that the review applicant has assumed responsibility for the financial support of the six visa applicants currently residing in Kenya on the basis of a customary obligation to assume responsibility for the care and guardianship of the adoptive children of his deceased brother.

29. Accordingly, the Tribunal is satisfied that each of the visa applicants do qualify as orphan relatives of Mr Bul Deng Bul at the time of application. Furthermore, the visa applicants retain the status of orphan relatives of Mr Bul Deng Bul at the time of this decision. Therefore the Tribunal finds that clause 117.211(a) is met, and continues to be met at the time of decision.

    Age – reg 1.14(a)(i)

30. Regulation 1.14(a)(i) requires that each visa applicant has not turned 18 at the time of application. The visa applicants applied for the requested visa on 13 June 2016, meaning that none of them could be born before 13 June 1998 in order to be eligible for the requested visa. The Tribunal is satisfied that all six of the visa applicants was born after 13 June 1998 such that each of them were under the age of 18 at the time of application. Accordingly regulation 1.14(a)(i) was met at the time of application. For purposes of clause 117.221 all of the visa applicants - with the exception of Miss Achik Chol Deng Bul - no longer meet the requirements of regulation 1.14(a)(i) yet only because he or she has already attained the age of 18 years in the interim.

    Spouse or de facto partner – reg 1.14(a)(ii)

31. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.  The evidence available to the Tribunal indicates that none of the visa applicants have a spouse or de-facto partner.  Accordingly, on the evidence, regulation 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

32. 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 regulation 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

33. The Tribunal is satisfied that each of the visa applicants is a relative of Mr Bul Deng Bul, who is an Australian citizen.  Accordingly, regulation 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

34. 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.

35. The Tribunal is satisfied regarding the evidence of the deaths of Mr Chol Deng Bul and his second wife Mrs Achol Duot Ayiei, and is further satisfied that that the first wife of the late Chol Deng Bul Mrs Alakiir Chol Ajak has been missing since 2013 such that she is also now presumed to have been killed in civil war fighting in South Sudan. Accordingly, regulation 1.14(b) was met at the time of application and continues to be met at the time of decision in the case of each of the six visa applicants.

    Best interests – reg 1.14(c)

36. 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 Tribunal is aware of no reason to believe that the grant of a visa would not be in the best interests of each visa applicant. Accordingly, regulation 1.14(c) was met at the time of application and continues to be met at the time of decision.

37. Given the findings above, clause 117.211 is met.

38. The Tribunal finds that each of the visa applicants either continues to satisfy the criterion in clause 117.211 or does not continue to satisfy the criterion in clause 117.211, yet only because the visa applicant has turned 18. It follows that clause 117.221 is met.

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

    DECISION

40. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the named visa applicants each meet the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·clause 117.211 of Schedule 2 to the Regulations; and

    ·clause 117.221 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    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.