Deng (Migration)

[2021] AATA 3339

Deng (Migration) [2021] AATA 3339 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Francis Mabior Deng

VISA APPLICANTS:  Ms Nyankiir Manyok Deng
Ms Alek Manyok Deng

CASE NUMBER:  2007936

DIBP REFERENCE(S):  BCC2019/267871

MEMBER:M. Edgoose

DATE:24 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first and second named visa applicants meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations

·cl.309.321 of Schedule 2 to the Regulations

Statement made on 24 August 2021 at 9:39am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – members of the family unit – customary adoption – customs and culture of the Dinka tribe – biological mother attested to the adoption – formal legal adoption not reasonably practicable – civil unrest in South Sudan – closer relationship than with any other person – money transfers – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.04, 1.12

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 9 March 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 30 January 2019 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.311 and cl 309.321 because the delegate was not satisfied the visa applicants were members of the review applicant’s family unit.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicants meet cl 309.311 of Schedule 2 to the Regulations which relevantly states:

   Clause 309.311

   The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

6. Reg 1.12    Member of the family unit 

   Scope

   (1)  This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

   General rule

   (2)  A person is a member of the family unit of another person (the family head) if the person:

   (a)  is a spouse or de facto partner of the family head; or

   (b)  is a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:

   (i)  has not turned 18; or

   (ii)  has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

   (iii)  has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

   (c)  is a dependent child of a person who meets the conditions in paragraph (b).

7. In the present matter, the applicants are claimed to be members of the family unit of the review applicant and of his spouse. As such, it is claimed that the applicants are children of the review applicant and dependent on him and his spouse.

   Adoption

8. Section 5CA of the Act defines that a child may be considered to be a child of a person if they are adopted by that person, pursuant to reg 1.04 of the Migration Regulations. Regulation 1.04 of the Migration Regulations states that a person is considered to have been adopted if formal adoption arrangements occurred in accordance with the practice of the laws of Australia or another country, or if other arrangements were entered into outside Australia. This includes adoption arrangements that took place in accordance with the usual practices, customs and culture of the adoptee, and the child-parent relationship is significantly closer than any such relationship between the adoptee and other person.

9. Further, customary adoptions (pursuant to reg 1.04(2)) are required to satisfy the Minister that formal adoption arrangements were not possible under the law or reasonably practicable in the circumstance, and were not entered into for the purposes of obtaining a migration outcome.

10. In the present matter, the review applicant has claimed to have adopted the visa applicants pursuant to the customs and culture of the Dinka tribe of South Sudan, and ought to therefore be considered as members of his family unit. In support of this claim, the review applicant provided the Tribunal with evidence that the father of the visa applicant’s has died (in the form of a death certificate), and sworn statements from the review applicant and the biological mother of the visa applicants attesting to the adoption.

11. Further, the review applicant has claimed the formal adoption under the law was not reasonably practicable in the circumstances. The review applicant’s representative made submissions to the Tribunal dated 4 August 2021. The submissions argued that given the civil unrest in South Sudan in conjunction with the review and visa applicants refugee status in Kenya, formal adoption under the law of South Sudan was not reasonably practicable in the circumstance. The Tribunal has considered the submissions in relation to this matter and accepts that formal adoption was not reasonably practicable, and the adoption took place in accordance with Dinka customs. This is supported by sworn statements from the visa applicant’s biological mother, as well as the review applicant that the review applicant was to assume full-time guardianship of the visa applicants and has done so since 2014. The Tribunal is satisfied that given the longevity of this arrangement, that the adoption did not occur in order to facilitate a migration outcome or to circumvent Australia’s migration law.

12. A witness statement provided to the Tribunal by a member of the South Sudanese community in Australia advised the Tribunal that intra-family guardianship matters in Dinka custom take place through verbal consent of the parents of the children involved, and do not take place formally. As such, the Tribunal was advised that where a blood relative of a child is to assume guardianship in Dinka custom, this will occur on verbal instructions. The Tribunal is satisfied that South Sudan has seen significant unrest, and that neither the visa applicants nor the review applicant live in South Sudan or have lived in South Sudan for an extended period of time and are considered to be refugees. Accordingly, the Tribunal is satisfied that the adoption arrangements under review in this matter could not take place formally in South Sudan. The Tribunal is further satisfied that, pursuant to the sworn statements from the visa applicant’s biological mother and the review applicant, that the visa applicant’s biological mother is unable and unwilling to care for the visa applicants in a parental capacity, and that the adoption arrangements were made in accordance with Dinka custom, and that the review applicant appropriately assumed guardianship of the visa applicants.

13. The Tribunal further accepts that, pursuant to oral evidence that the visa applicants resided with the review applicant’s spouse for a period of seven years, that the parent-child relationship between the visa applicants and the review applicant and his spouse are is significantly closer than any other such relationship between the visa applicants and any other person, including the visa applicant’s biological mother.

    Member of the Family Unit

14. Given that the Tribunal is satisfied that the visa applicants were appropriately adopted by the review applicant and should therefore be considered children of the review applicant, the Tribunal must consider whether those children are dependent on the review applicant.

15. Further the Tribunal has considered the evidence that the review applicant provided to the Tribunal of the visa applicants dependence on him. This included various money transfers indicating that the visa applicants were and continue to be financially dependent on the review applicant. The Tribunal has further reviewed the review applicant’s movement records and is satisfied that the review applicant travelled to visit his spouse and the visa applicants.

16. The Tribunal notes that pursuant to oral evidence, prior to the review applicant’s wife’s arrival in Australia, she and the visa applicants lived as a family unit dependent on financial support from the review applicant. This is supported by the representative’s submissions which indicate that the visa applicants resided with the review applicant’s spouse for a period of seven years, prior to her arrival in Australia. The Tribunal places significant weight on this. The Tribunal acknowledges that the review applicant’s spouse was granted a Partner (class BC) (subclass 100) Migrant visa and was required to enter Australia before a certain date. The Tribunal notes that the visa applicants were refused for this visa, and as such the review applicant’s spouse had limited choices but to enter Australia without the visa applicants. The Tribunal does not place any adverse weight on this and does not find that this indicates that the visa applicants were not members of the review applicant’s family unit.

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

18. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first and second named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations

    M. Edgoose
    Member