Kamara (Migration) - [2024] AATA 3055

Kamara (Migration) [2024] AATA 3055 (13 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Dora Kamara
VISA APPLICANTS:  Ms N'gady Bangura
Miss Angel Grace Koroma
REPRESENTATIVE:  Mrs Liza Etrue-Ellis (MARN: 1066962)
CASE NUMBER:  2005270
HOME AFFAIRS REFERENCE(S):          BCC2015/2664805
MEMBER:Tegen Downes
DATE:13 August 2024
PLACE OF DECISION:  Brisbane
DECISION:In relation to the first-named visa applicant, the Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a 309 (Spouse (Provisional)) visa:
·Clause 309.311 of Schedule 2 to the Regulations
In relation to the second-named visa applicant, the Tribunal affirms the decision not to grant the second-named visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 13 August 2024 at 9:18am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary applicant – member of the family unit – customary adoption, fostering, and guardianship arrangements in Sierra Leone – informal adoption – niece – decision under review remitted
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary applicant – member of the family unit – customary adoption, fostering, and guardianship arrangements in Sierra Leone – grandchild – ‘child or step child’ – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 5CA,65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 2.08B; Schedule 2, cl 309.311
CASES
Nakad & Ors v Minister for Immigration & Anor [2013] FMCA 234
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Provisional) (Class UF) visas under section 65 of the Migration Act 1958 (Cth) (the Act).
The primary applicant, Mr Musa, applied for a Subclass 309 (Partner (Provisional)) visa on 12 September 2015 based on his relationship with his sponsor, the review applicant (the sponsor). One of the visa applicants, Ms Bangura, was included in that visa application as a secondary applicant. The other visa applicant, Miss Koroma, was added as an additional secondary applicant after lodgement.
Ms Koroma was included as an additional applicant pursuant to reg 2.08B, which relevantly provides that ‘the application of the additional applicant is taken to have been made on the later of the Minister receiving the request [to add the additional applicant to the application] and the additional applicant charge (if any) being paid’: reg 2.08B(1)(f). The department’s records indicate that the request and payment information was sent by the representative to the department on 3 April 2017. Accordingly, the time of application for Ms Koroma’s application is on or about 3 April 2017.
The delegate refused to grant Ms Bangura and Miss Koroma’s visas on 13 January 2020 on the basis that they did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that they were ‘members of the family unit’ of the primary applicant, within the meaning of the Act.
The sponsor was represented in relation to the review. The material submitted by the representative did not comply with Tribunal’s requirements and expectations set out in the Migration and Refugee Division Practice Direction. This adversely affected the Tribunal’s ability to carry out its functions in accordance with its objects, as set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
The sponsor appeared before the Tribunal on 22 May 2024 and 8 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant.
For the following reasons, the Tribunal has concluded that, in relation to the first-named applicant, Ms Bangura, the matter should be remitted for reconsideration and, in relation to the second-named applicant, Miss Komora, the decision under review should be affirmed.
ISSUES AND LAW
The issue in this review is whether, at the time of application, the secondary applicants were both ‘members of the family unit’ of the primary applicant, for the purposes of cl 309.311 of Schedule 2 to the Regulations.
At the time Ms Bangura’s application was made:
a.Regulation 1.12(1) relevantly provided as follows:
(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)       a spouse or de facto partner of the family head; or
(b)a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e)a relative of the family head or of a spouse or de facto partner of the family head who:
(i)        does not have a spouse or de facto partner; and
(ii)is usually resident in the family head's household; and
(iii)      is dependent on the family head.
b.Regulation 1.03 relevantly provided that a ‘relative’ means:
i.a ‘close relative’, being the spouse or de facto partner, child, parent, brother or sister, step-child, step-brother or step-sister of the person;
ii.a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
At the time Ms Koroma’s application was made, regulation 1.12(1) relevantly provided as follows:
(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).
CONSIDERATION OF EVIDENCE AND CLAIMS
Background
The primary applicant, Mr Musa, is the sponsor’s husband. He is a citizen of Sierra Leone, who was granted a partner visa in January 2020 and moved to Australia in February 2020.
Ms Bangura is a 26-year-old woman from Sierra Leone. She claims to be Mr Musa’s niece. Miss Koroma is Ms Bangura’s 9-year-old daughter. At the times of their respective applications, Ms Bangura was aged 17 years and Miss Koroma was aged 2 years.
According to the decision notice, the department asked Ms Bangura, Miss Koroma and Mr Musa to undertake a DNA test to prove their relationship. In response, their representative claimed that a DNA test would not hold because Mr Musa was adopted to Ms Bangura’s family as a child. However, a DNA test was conducted as between Ms Bangura and Miss Koroma, which confirmed their mother/daughter relationship.
Mr Musa and the sponsor gave evidence at the hearing to the following effect:
a.The couple met in Guinea in 2004, where they were living as refugees. They lived in the same neighbourhood. Mr Musa lived with his sister, her husband and their youngest daughter, Ms Bangura. Mr Musa had also previously lived with his sister’s family in Sierra Leone.
b.Mr Musa moved back to Sierra Leone in November 2006 to work. Ms Bangura, then aged 9 years, moved with him in order to further her education and to lessen the burden on Mr Musa’s sister, whose husband had recently passed.
c.Mr Musa and Ms Bangura continued to live together in Sierra Leone in two different properties until Mr Musa relocated to Australia.
d.Miss Koroma was born in 2014. When she was a baby, she lived with another of Mr Musa’s sisters and her husband so that Ms Bangura could attend school. Miss Koroma later moved in with Mr Musa and Mr Bangura when she was approximately 4 or 5 years old.
e.Since 2006, Ms Bangura has been entirely dependent upon Mr Musa for her basic needs. Her mother only provided them with some food or household items once and a while.
f.When Miss Koroma lived with Mr Musa’s sister and her husband (who was a teacher), the sister provided accommodation and some other things but Mr Musa provided the majority of what she needed.
g.After the department requested the DNA test, Ms Bangura’s mother informed Mr Musa that he was not biologically related to her. Only one other sister knew of this. That sister is recently deceased.
h.
Shortly before Mr Musa left for Australia, he arranged for Ms Bangura and Miss Koroma to live with a close friend of his in Sierra Leone. He continues to send money to Ms Bangura to pay for her rent and living expenses.
I also note the following documentation, which was submitted to the department:
a.A statement from Mr Musa dated 15 April 2019, which states to the effect that: there is no documentation related to his “adoption”; his sister told him that there was one document which his mother kept in her trunk but it was destroyed in the civil war when their house was burnt down; and the police station where his case was reported was demolished more than 25 years go.
b.An undated statement from Mr Musa, which states to the effect that his sister who used to look after Miss Koroma was financially supported by her husband, who died in 2017. Her sister then moved to live with another sister and Miss Koroma then moved in with him.
c.A statutory declaration dated 20 September 2019 from Ms Bangura’s mother stating to the effect that: she is the biological daughter of Mr Musa’s parents; that Mr Musa was found by her mother as an abandoned baby; that her parents registered his birth, named him and were responsible for his welfare from childhood to adulthood.
d.An affidavit dated 2 August 2019 from Ms Bangura’s mother stating to the effect that Mr Musa is Ms Bangura’s guardian and that he has been responsible for her welfare since 2006.
Further the following documentation was submitted to the Tribunal:
a.Certified true copy of a birth certificate for Mr Musa issued in 2014;
b.Delayed birth certificate of Ms Bangura’s mother issued in 2014;
c.Certified true copy of a birth certificate for Ms Bangura issued in 2014.
External Information regarding Sierra Leone
The Tribunal has considered external information about the customary adoption, fostering, guardianship arrangements and the like in Sierra Leone.
The Tribunal notes a Briefing Paper published by Dr Lacey Andrews Gale (Andrews Gale, Lacey 2008, ‗Beyond men pikin: improving understanding of post-conflict child fostering in Sierra Leone‘, Feinstein International Center Briefing Paper, 25 April, Child Rights Information Network website – Accessed 8 August 2024), which provides:
Since the civil war ended in Sierra Leone, child fostering—whether informal or facilitated by humanitarian agencies and the government – has become the preferred solution for the estimated 800,000+ orphaned, abandoned, and vulnerable children.
…
Formal fostering is relatively rare compared with men pikin, the term used in Krio – the lingua franca used throughout Sierra Leone – for informal child fostering, a practice which affects every extended family in the country. Men pikin primarily entails a child receiving formal education or an apprenticeship outside the family. Due to the scarcity of secondary schools in villages, certain age groups of children are fostered by extended family or friends in towns and cities.
…
It is commonly said by Sierra Leoneans that “there are no orphans in Sierra Leone.” As part of extended family or other types of networks many Sierra Leoneans foster children who became separated from their parents or whose parents died during the war. Fostering is also perceived as a way for families to help their children become educated, improve their chances for an advantageous marriage, learn a trade, and become “civilized” by living in an urban or peri-urban environment.
The Tribunal also notes a report on family law in Sierra Leone supported by the Afrika-Studiecentrum, University of Leiden (Harrell-Bond, Barbara E. & Rijnsdorp, Ulrica 1975, Family Law in Sierra Leone – A Research Report, Leiden University website – Accessed 8 August 2024), which provides:
Under customary law, rights over children are held by families, not only by the individual parents. Like all other decisions of importance, decisions affecting children are usually taken in consultation with the other members of the family.
It is common practice for children to live for varying periods of time with relatives other than their parents. Many groups feel that it is desirable for a child to be reared by a relative who will provide strict discipline, as parents are likely to spoil him. The “ward system”, where the child is handed over to non-relatives for training, has been practiced in Sierra Leone for a very long time. Formerly, it would have been impossible for a child to be left without relatives who would take care of him if his parents died. Today, however, it is not uncommon for the relatives of orphaned children to be unable or unwilling to assume responsibility for their care.
…
During our research we attempted to discover whether there were any practices under customary law which correspond with adoption as it is understood in English law. We found a number of practices which involved at least partial transfer of rights over children. These can be grouped in four broad categories.
(a) A child may be handed over to a relative for varying periods of time. The financial support of such a child is usually provided by the family caring for him. Such a child is said to have been given to the relatives for training or ‘minding’.
…
(d)Since the early days of the Colony, the practice of placing children as ‘wards’ in the households of non-related families has been very common. The responsibility for maintenance varies with individual family arrangements. Formerly, it was quite common for the family in loco parentis to assume responsibility for the child’s care and school education. In many cases these children become absorbed into their foster-family, sometimes even taking its name.
…
It can be seen that none of these customary arrangements constitutes adoption as it is understood in English law… People who foster or informally adopt such children have no legal protection from claims made by any relative who may establish a blood tie. After all, under customary law rights over children are controlled by the entire family, not only by the parents.
The Tribunal notes an article by Ida Lisk (Lisk, Ida E.P. 1997, ‗Sierra Leone – Children in Especially Difficult Circumstances‘, The International Survey of Family Law 1995, International Society of Family Law, The Netherlands, pp.457-475), which provides:
The stark realities of economic survival, the destruction of numerous families during the war and the financial hardship suffered by lower income groups with large families led to the need to find suitable homes for unwanted children. Parents who fostered or informally adopted such children had no legal protection from claims by the natural parents or blood relatives.
…
Informal adoptions existed in Sierra Leone in a variety of situations but for the past decade there has been a growing realization that these arrangements should be legalized in order to provide proper security for the child and the adopters who often feared that the natural parents might claim possession of the child after a number of years of care by the adopters.
The Tribunal also notes another article by Ms Lisk which provides (Lisk, Ida E. 1992, ‗The Adoption Act of Sierra Leone‘, Journal of African Law, Vol. 36, No. 1, Spring, pp.28-42):
Informal adoptions existed in Sierra Leone in a variety of situations but for the past decade there has been a growing realization that these arrangements needed a legal stamp in order to provide proper security for the child and for the adopters who often feared that the natural parent might claim possession of the child after a number of years of care by the adopters. The absence of any provisions for legal adoption was a cause of concern for couples who wished to provide a permanent home for children who were not their natural children.
…
Since the system of law in Sierra Leone is pluralistic comprising the received English law (there general law), Mohammedan law and customary law, there was a position where under the general law there was no law on adoption while under customary law some kinds of adoption were recognised. However it is doubtful whether this was equivalent to the Western concept of adoption, which involves the “complete severance of legal relationship between parent and child and the establishment of a new one between the child and his adoptive parents”. The purpose of adoption under customary law was not to secure a permanent home for the child but was more as a semi-permanent transfer of legal rights and obligations. The children remained the children of their natural parents and there was no right of succession between the child and the adoptive parent. Only partial transfer of rights was involved and the legal relationship was more in consonance with the custodianship order granted to prospective adopters by some courts in England. In Sierra Leone it is common practice under the “ward” system for young children to be given to relatives or non-relatives by their parents for education reasons. Often this relationship is equivalent to guardianship or fostering. Professor Joko Smart indicates two reasons for this practice: “one reason may be to foster a good relationship between the parents and the guardian. A second reason is that some tribes particularly the Mende, Sherbo and Galllines believe that children brought up outside their immediate family circle are better trained than those nurtured within”. Nowadays financial reasons will invariably be an additional incentive in these cases.
Ms Bangura’s Application
On the evidence before the Tribunal, Mr Musa is neither the biological nor legally adoptive brother of Ms Bangura’s mother. He was taken in and claimed by the family, and his ‘parents’ registered him as their child, even though he was neither biologically or legally their child, as evidenced by the Mr Musa’s and Ms Bangura’s mother’s birth certificates, which refer to them as having the same parents.
I accept the evidence before the Tribunal as to Mr Musa’s acceptance into the family and his upbringing. I note that there is no evidence before the Tribunal that Mr Musa’s birth certificate is a bogus or fraudulent document. I also accept based on the external information referred to in this decision that the circumstances claimed regarding Mr Musa’s informal adoption into the family are not uncommon in Sierra Leone.
I do not consider that the absence of a blood or legal relationship between Mr Musa, his ‘parents’ and his ‘siblings’ fatally undermines his claim that his is a member of their family. I accept based on all of the material before me that Mr Musa was informally adopted into his family.

Ms Bangura claims to be a member of Mr Musa’s family unit on the basis that she is his niece. Niece is not defined in the legislation. The Macquarie Dictionary relevantly defines a ‘niece’ as: ‘(i) a daughter of one’s brother or sister; or and (ii) a daughter of one’s husband’s or wife’s brother or sister. For the reasons set out above, I am satisfied that Ms Bangura is Mr Musa’s niece. As I have accepted Mr Musa’s relationship with his parents and siblings, I also accept that Ms Bangura is Mr Musa’s niece for the purposes of the Act.
Further, I find based on the material before me, including that not expressly referred to in this decision, that, at the time of application, Ms Bangura did not have spouse or de facto partner, that she was usually resident in the Mr Musa’s household and that she was dependent on Mr Musa.
For these reasons, I find that, at the time of application, Ms Bangura was a ‘member of the family unit’ of Mr Musa and satisfied cl 309.311 of Schedule 2 to the Regulations.
Ms Koroma’s Application
In relation to Miss Koroma, at the hearing, the representative submitted that the under African culture, she is considered a grandchild of the primary applicant and accordingly, ought to be considered a member of his family unit.
Following the hearing, the representative further submitted:
Family unit in Sierra Leone is typically characterised by widespread of extended family (ancestral kinship, blood relations and adoption).
In Sierra Leone, a “member of family unit” typically refers to individuals who are part of the immediate or extended family. This includes:
1. Immediate Family:
• Spouse (husband or wife)
• Children (biological, adopted, or stepchildren)
• Parents (biological or adoptive)
2. Extended Family:
• Siblings (brothers and sisters)
• Grandparents
• Aunts and uncles
• Cousins
• In-laws (mother-in-law, father-in-law, brother-in-law, sister-in-law, etc.)
The concept of family in Sierra Leone is often extended beyond the nuclear family to include various relatives who may live together or maintain close ties, reflecting the communal and extended family structures common in many African societies. The exact definition can vary depending on the context, such as legal, social, or cultural settings.
In Sierra Leone, aunts may be addressed as mother, and cousins are called brother or sister.
We submit to the Presiding Member that Miss Angel Grace Koroma satisfies the definition of member of the family unit” under Migration Regulation 1994 (Cth). 1.12 (1) (c), and 1.12 (4)(c) (i).
The above legislation explicitly provides that ‘a dependent child of a dependent child of the family head’ is a member of the family unit. Grace being a dependent child of Miss N’Gady Bangura who is a dependent child of Mr Musa (the head of the family unit) satisfies the definition of member of the family unit. During the hearing it was established that Mr Musa, the family head provides and supports the needs of N’Gady and Grace for all these years. Although Grace was not included in the original application, she was however declared in the application as a member of the family unit under reg. 309.311 of Schedule but not migrating at the time. Reg.2.08B (1), (b), (ba), (c), (d) and (daa), (e), and (f), allows a depended child to be added to the original application (b) before decision is made (ba). As Grace’s application was accepted in accordance with (d), (daa), (i), (ii), Grace satisfied the provisions and the whereabouts at the time of application and applied to a visa of the same class.
The representative also submitted the following documents:
a.Extract from the AFS USA website (being an American international youth exchange organisation), which relevantly provide:
Family Dynamic
In Sierra Leone, aunts may be addressed as mother, and cousins are called brother or sister. Three to five generations may reside on a family compound. In situations where there is more than one wife living on a compound, wives usually share tasks and raising children.
b.Document of unknown source (which the representative submitted was obtained from Google and is in the public domain), which relevantly provides:
In Sierra Leone the typical household encompasses the extended family, with parents, children, grandparents, aunts, uncles, and cousins all living in one home. One of the parents will have responsibility for their family financially, and it could be the mother or father
I note that while Ms Koroma’s application was accepted by the department, this does not mean that she ‘satisfied the provisions…at the time of application’, as submitted. Relevantly, reg 2.08B(1)(c) requires that ‘the request [to add the additional applicant] includes a statement that the original applicant claims that the dependent child is the dependent child of the original applicant’. It does not require a determination of this claim for acceptance.
I accept that Miss Koroma is the child of Ms Bangura. However, I do not accept that Ms Bangura is the “child or step‑child” of Mr Musa.
Section 5CA of the Act defines “child of a person” as:
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b) someone who is an adopted child of the person within the meaning of this Act.
The relationship between Ms Bangura and Ms Musa does not fall within the meaning of (a) or (b). However, as noted at [39] of Nakad & Ors v Minister for Immigration & Anor [2013] FMCA 234, ‘Given that s.5CA of the Act states that “Without limiting who is a child of a person for the purposes of this Act”, it is possible that in certain circumstances a niece or nephew may be capable of satisfying the definition of a “child”. For example, an uncle may have custody of a niece or nephew.’
I have carefully considered the evidence and the submissions provided. However, I do not accept the representative’s submissions.
It is apparent from the external resources cited above that guardianship arrangements are common in Sierra Leone and are not intended to replace the parent/child relationship or transfer permanent custody of the child to the guardian. Accordingly, I do not consider that the fact that Mr Musa has assumed the role as Ms Bangura’s guardian ought to mean that Ms Bangura is his child, as opposed to his niece.
Further, while I accept that parental-type roles may be shared by the extended family under the applicants’ culture, I do not consider that this changes the categorisation of the parties’ relationship from uncle/niece to father/child. If this argument were to be accepted, any ‘aunt’ or ‘uncle’ (legally, culturally or otherwise) could claim to be the parent of a relative, which is not the intention of the provision.
In circumstances where I do not consider that Ms Bangura is the child of Mr Musa, within the meaning of the Act, I find that Miss Komora does not satisfy the definition of member of the family unit. Accordingly, cl 309.311 of Schedule 2 to the Regulations is not met.
DECISION
In relation to the first-named applicant, the Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the first-named applicant meets the following criteria for a 309 (Spouse (Provisional)) visa:
·cl 309.311 of Schedule 2 to the Regulations.
In relation to the second-named applicant, the Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF).
Tegen Downes
Member
1.12     Member of the family unit
(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)     a spouse or de facto partner of the family head; or
(b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(d)     (Omitted 02/04/2005)
(e)      a relative of the family head or of a spouse or de facto partner of the family head who:
(i)does not have a spouse or de facto partner; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head.
…
1.05A Dependent
(1)  Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
(2) …