Deng (Migration)

The Administrative Appeals Tribunal considered a Partner (Provisional) (Class UF) visa application, specifically a Subclass 309 visa, involving applicants who claimed to be members of the family unit of the review applicant and his spouse. The core dispute centred on whether the visa applicants qualified as children of the review applicant, and consequently, as members of his family unit for migration purposes.

The Tribunal was required to determine if the applicants met the criteria for being a "member of the family unit" as defined in the Migration Regulations, particularly in relation to the definition of a child. This involved assessing whether a customary adoption, purportedly undertaken according to the customs and culture of the Dinka tribe of South Sudan, satisfied the requirements of regulation 1.04 of the Migration Regulations. Specifically, the Tribunal had to consider whether formal adoption arrangements were not reasonably practicable and if the child-parent relationship established was significantly closer than any other such relationship.

The Tribunal reasoned that while formal legal adoption might not have been feasible due to civil unrest in South Sudan, the evidence presented, including a death certificate for the biological father and sworn statements from the review applicant and the biological mother, supported the claim of a customary adoption. The Tribunal found that these arrangements met the criteria under regulation 1.04, which allows for adoptions based on usual practices, customs, and culture, provided the child-parent relationship is significantly closer than with any other person and formal adoption was not reasonably practicable.

Consequently, the Tribunal remitted the applications for the Partner (Provisional) (Class UF) visas for reconsideration. The Tribunal directed that the first and second named visa applicants were found to meet the criteria under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.