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

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’).
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bul (Migration)

Details

AGLC: Bul (Migration) [2024] AATA 20
Case: [2024] AATA 20
Decision Date: 3 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), made by six visa applicants. The review applicant, Mr Bul Deng Bul, sought to sponsor these applicants as his nephews and nieces, who were the children of his deceased brother. The core dispute arose after DNA testing indicated that the visa applicants were unlikely to be biologically related to Mr Bul Deng Bul's late brother.

The Tribunal was required to determine whether the visa applicants qualified as "orphan relatives" of an "Australian relative" under the Migration Regulations 1994, specifically clauses 117.211 and 117.221. This involved assessing whether the applicants could be considered adoptive children under Dinka tribal customary practice in South Sudan, thereby establishing Mr Bul Deng Bul as their paternal uncle and an eligible "Australian relative." The definition of "orphan relative" and "relative" under the Regulations was central to this assessment.

The Tribunal accepted that Mr Bul Deng Bul was an Australian citizen and that his brother and the brother's second wife had died. It also accepted that the brother's first wife was missing and presumed dead. While DNA testing cast doubt on the biological parentage of the visa applicants, the Tribunal considered Mr Bul Deng Bul's evidence regarding Dinka customary practice, which places responsibility for orphaned children on surviving family members. Mr Bul Deng Bul asserted his belief that the children were his brother's and that, under custom, it was his responsibility as their uncle to care for them, a responsibility he had been fulfilling financially since 2013.

Given the circumstances, particularly the potential for adoption under customary law and the applicant's commitment to care for the children, the Tribunal remitted the visa applications for reconsideration. The direction was that the visa applicants were to be considered as meeting the criteria under clauses 117.211 and 117.221 of Schedule 2 to the Regulations, allowing for further assessment of the remaining visa requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has determined that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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? 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. ‘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”. At the outset the Tribunal records that it is satisfied that Mr Bul Deng Bul is an Australian citizen, resident in Australia. 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. 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.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION 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 WilliamsMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:(a)the applicant:(i)has not turned 18; and(ii)does not have a spouse or de facto partner; and(iii)is a relative of that other person; and(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

Ratio Decidendi

Legal Principle Established

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