Bul (Migration)

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.