Manhom (Migration)

[2022] AATA 128

Manhom (Migration) [2022] AATA 128 (18 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Samuel Ater Matit Manhom

VISA APPLICANT:  Miss Athiei Madol Akech Gor

CASE NUMBER:  2000960

DIBP REFERENCE(S):  BCC2018/2815519

MEMBER:Peter Vlahos

DATE:18 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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

This Statement was made on 18^th January 2022 at 9.30AM

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – dependent and member of the family unit – sister of the primary visa applicant – no adoption arrangements – Power of Attorney – recording of births and adoptions in South Sudan – customary adoption – substantial financial reliance on the sponsor – money transfers to the applicant’s school – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.04, 1.05, 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 13 November 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 July 2018 on the basis of her relationship with her 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.309.321 because the delegate was not satisfied the visa applicant was a member of the family unit of primary applicant, Mr Samuel Ater Matit Manhon, within the meaning of r.1.12 as there was no evidence of formal adoption orders in respect of her.

4. Via an internet audio-visual facility, the review applicant appeared before the Tribunal on 24 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s sister, Ms Nyitur Madol Akech Gor.

5. There were no interpreters involved in the proceeding as all parties understood and were fluent in the English language.

6. The parties were self-represented before the Tribunal

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the secondary applicant is formally adopted (as provided for by reg. 104) and also a ‘member of the family unit’ of the primary applicant as provided for by reg. 1.12.

9. Clause 309.311 is a time of application requirement, meaning that, in order to grant a visa to the secondary applicant, the Tribunal must be satisfied that at the time the visa application was validly lodged (on 27 July 2018) the secondary applicant was a ‘member of the family unit’ of the principal applicant (Nyitur Madol Akech Gor). In order to meet cl. 309.321 at the time of decision, it is required of the applicant that she:

   (a)  continues to be a member of the family unit of the person who, having satisfied the primary criteria, is a holder of a Subclass 309 (Partner (Provisional) visa (the person who satisfies the primary criteria).

10. The principal applicant, Ms Nyitur Madol Akech Gor (DOB 1.11.1998) is a 33-year-old national from South Sudan currently residing in Australia[1]. She was a former resident of Uasin Gishu County, Kenya since 2016 and until she departed for Australia in 2019. She is married to Mr Samuel Ater Matit Manhon, who is an Australian Citizen. There are also two children of the relationship (de facto) Master Manhom Ater Matit (born, 14.09.2016) and Master Cacuon Kachol Matit (born, 15.05.2016) and both provided by the Australian government with their Citizenship by descent Certificates.[2]

    [1] see Department of Home Affairs File no. BCC2018/2815519, copy of Passport (South Sudan) No. R00344182.

    [2] see Department of Home Affairs File no. BCC2018/2815519

11. The sponsor (the ‘review applicant’) made it clear to the Tribunal and in all documents provided to the Department when he was making his application for his wife and children, that the visa applicant was his wife’s sister – his sister-in-law. He told the Department at the time, and subsequently the same to the Tribunal, that his wife and he had a ‘guardianship role’ concerning the visa applicant. The visa applicant, the Tribunal was told had no other family and was solely dependent on the review applicant and his wife. The Tribunal was told also that the visa applicant lived with the couple when together and continued to live with her sister until she and the children (the review applicant’s) migrated to Australia. The review applicant explained that his sister-in-law was and is considered a part of his family. Indeed, while his wife and children have been in Australia, he, and his wife, have continued to provide for the visa applicant – in money transferred to her for her daily subsistence, living expenses and food.[3]

    Relevant law

    [3] Ibid, AAT File, see money transfers provided by the review applicant to the visa applicant.

12. The issue in this matter is whether the visa applicant is a member of the same unit as the sponsor and his spouse holding a Subclass 309 Partner visa.

    Regulation 309.3

    Secondary criteria

    Note These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

    Regulation 309.31

    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

    The applicant:

    (a)   continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria); or

    (b)   is a person to whom each of the following applies:

    (i)the person made a combined application with the person who satisfies the primary criteria;

    (ii)subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria;

    (iii)subsequent to the person who satisfies the primary criteria being granted a Subclass 309 (Partner Provisional) visa and Subclass 100 (Partner) visa – the Migration Review Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.

    Regulation 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) 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)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.

    Dependent child is defined as:

    Dependent child of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)   has not turned 18; or

    (b)   has turned 18 and:

    (i)is dependent on thar person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions

    Regulation 1.05A defines ‘Dependent’

    (1)   Subject to subregulation (2), a person (the first person) is dependent on another 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 the 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 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.

    Regulation 1.04: Adoption

    1.04(1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    (a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

    (b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

    (c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2) For the purposes of paragraph (1) (c), arrangements are taken to be in the nature of adoption if:

    (a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

    (b) the child-parent relationship between the adoptee and adopter is significantly closer than any such relationship between the adoptee and any other persons, having regard to the nature and duration of the arrangements; and

    (c) the Minister is satisfied that:

    (i) formal adoption of the kind referred to in paragraph (1)(b):

    (A) was not available under the law of the place where the arrangements were made; or

    (B) was not reasonably practicable in the circumstances; and

    (ii) the arrangements have not been contrived to circumvent Australia migration requirements.

    FINDINGS AND REASONS FOR DECISION

13. It was noted by the Tribunal that the delegate concluded that he was not satisfied the visa applicant was a member of the family unit of a spouse or de facto partner of the family head: regulation 1.12 (2)(a).

14. The primary applicant according to the delegate was considered to be the family head. It was noted by the delegate that the secondary applicant claimed to be the family head’s sibling.

15. The delegate also considered the question whether the secondary applicant was a member of the family unit of another person and was a child or stepchild of the family head or of a spouse or de factor partner of the family head, as provided for by regulation 1.12(2)(b). The delegate considered whether the secondary applicant met the definition of ‘Child’ as was defined in section 5CA(1)(a) of the Act and as the secondary applicant was the sibling of the family head, the delegate was satisfied that the secondary applicant was not the biological child of the family head or of the sponsor.

16. There was no documentary evidence (before the Department) to support there was adoption arrangements in place which were made by the laws of a State or Territory of Australia, as was required by regulation 1.04 (1)(a).

17. The delegate went on to conclude that regulation 1.104 (1) (b) could not be relied upon because there was no evidence before the Tribunal of any adoption arrangements having been made by the parties in accordance with the law of another country, in this case South Sudan and Kenya.

18. At the hearing, however, the parties submitted a copy of a ‘Power of Attorney’ dated 22 July 2015. It was claimed that this power of Attorney, was made by the father of the visa applicant, a Mr. Madol Akek Gor who, after signing this document has disappeared. It was also submitted by the sponsor, that the visa applicant had been his and his spouse’s sole responsibility and remains so. It is noted that it was admitted in evidence before the Tribunal by the parties that the visa applicant has no other person to care and to provide for her and is currently attending a boarding school in Kenya which is paid for by the review applicant. The Tribunal noted the ‘copy’ of correspondence from the boarding school Principal on file.[4]

    [4] see AAT File, Letter from Principal, Mr Edagiza Sammy, Kapsoya Primary School, Eldoret, Kenya, dated 7 June 2019.

19. Further, the Tribunal has been mindful to consider that South Sudan is a newly created state with poor administrative practices, including the recording of adoptions. There are many informal social structures to deal with the social impact of children becoming orphaned through premature death and abandonment.

20. The October 2016 report regarding South Sudan compiled by Australia’s Department of Foreign Affairs and Trade (DFAT) states that the new nation of South Sudan was established in 2011 following two protracted conflicts between the northern and southern regions of Sudan, which had itself gained independence from the United Kingdom and Egypt in 1956. The First Civil War (1955-1972) and the Second Civil War (1983-2005) were rooted in the North’s economic, political and social domination of the South and led to the deaths of more than 1.5 million people. The 2002 Machakos Protocol between the northern dominated Government of Sudan and its main opposition, the southern dominated Sudan People’s Liberation Movement (SPLM)/Sudan People’s Liberation Army, outlined the process of negotiations that culminated in the 2005 Comprehensive Peace Agreement (CPA), which ended the Second Civil War. The CPA included a commitment to hold a referendum on the sovereignty of the southern provinces. Following this referendum, South Sudan became the world’s youngest nation on 9 July 2011.

21. On 15 December 2013, conflict erupted and quickly assumed ethnic dimensions when Dinka elements of the Presidential Guard violently targeted Nuer civilians in Juba. Conflict continued to intensify, largely between the Government led by Kiir who is the leader of the SPLM and the Sudanese People’s Liberation Movement-in-Opposition (SPLM-O), led by Machar.

22. The DFAT report further states the humanitarian situation in South Sudan is dire and has been aggravated by the recent escalation in conflict. As of August 2015, 1.6 million people were internally displaced, including 190,000 in Protection of civilian camps run by the UN Mission in South Sudan, and a further 818, 950 South Sudanese people seeking refuge in surrounding countries including Kenya.[5] The Government accepted the deployment of a 4,000 ‘Regional Protection Force’ in early September 2016, in addition to the roughly 12,000 UN Mission in South Sudan personnel already serving in South Sudan.

    [5] Approximately 160,000 South Sudanese are currently living in Kenya, a part of a wider number, some 3.5m South Sudanese which have suffered displacement because of the civil war: see, South Sudan Refugee Crisis Explained (unrefugees.org)

23. South Sudan has a very poor administrative capacity from its central government. For instance, South Sudan does not require births to be registered. As a result, there are no official procedures for the issuance of birth certificates. DFAT understands that several government departments issue birth certificates, but it is difficult to ascertain which are officially recognised. Birth certificates are often issued on the basis of the information provided, with no checks to confirm the accuracy of the information. Hospitals are also known to issue a range of different birth certificates, often featuring government stamps. Individuals are able to obtain birth certificates from hospitals even if the birth did not occur at the hospital. Individuals who are not in possession of a birth certificate are often required to undergo an age assessment, which can be misleading.

24. In this matter the parties claim that the sponsor and his spouse are because of a power of attorney executed by his spouse’s late father in their name the sole custodians or guardians of the visa applicant, Ms Athiei Madol Akech Gor (DOB 1 January 2009). In essence, the parties claim to have adopted the visa applicant by custom.

25. During the hearing, the Tribunal enquired into further details about how this claimed adoptive relationship came about and the nature of those arrangements. It is claimed that soon after the power of attorney was executed, the visa applicant’s biological father disappeared and the sponsor and his spouse (her father having disappeared) became the adoptive ‘parents’ or ‘guardians’ of the visa applicant since 2016. Since then, the sponsor and his spouse, assumed the role as adoptive parents as was customary in their culture. The sponsor provided material support of the visa applicant by sending remittances to her boarding school for her schooling, needs and shelter. Indeed, while all the parties were in Kenya before coming to Australia, the visa applicant lived with the sponsor and his spouse and family and was considered a ‘member of the family.’

26. The Tribunal accepts the veracity of the overall written, oral and documentary evidence which has been consistently presented to the Department in the first instance and upon review to the Tribunal.

27. There is not death certificate associated with the claimed or presumed death or unknown whereabouts of the visa applicant’s parent. Noting the difficulties in providing such evidence in the South Sudanese context and that there was no attempt to submit a false death certificate or any other documents, the Tribunal accepts the evidence that the applicant did not turn 18 and was not cared for by either parent because each of them is either dead or of unknown whereabouts at the time of application.

28. In having regard to the nature and duration of the arrangements between the adoptee and adaptor, it (the Tribunal) accepts there is an adoptive child/parent relationship between the visa applicant and the sponsor (and the main applicant) that is customary and socially recognised in South Sudan for the purposes of subregulations 1.04(1)(c), and 1.04(2)(a)(b)(c) at the time of application.

29. The Tribunal is satisfied the visa applicant was a minor at the time of application and has been for a substantial period immediately before the application was lodged, substantially reliant on the sponsor for financial support to meet the visa applicant’s basic needs for food, clothing and shelter and that the visa applicant’s reliance on the sponsor was greater than any reliance by the visa applicant on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.

30. Therefore, the visa applicant was a dependent child on the sponsor (and the main applicant) for the purposes of subregulations 1.12(1)(b) and 1.05A (1)(a) at the time of application.

31. Having carefully considered and weighed all of the oral and written evidence given to the Tribunal, together with supporting evidence, the Tribunal is satisfied that the secondary applicant is a dependent and adopted child of the review applicant and the main applicant and therefore, members of the family unit of the review applicant, consistent with regulations 1.04, 1.05A and 1.12 at the time of application.

1. Based on its assessment of the entirety of the evidence, the Tribunal accordingly determines the applicant satisfies 309.311 at the time of application.

   Time of decision criteria

2. At the time of making this decision, the applicant was under the age of majority.

3. The evidence before the Tribunal is that the applicant resides at a boarding school in Eldoret, Kenya and is materially assisted by the sponsor transferring money to that school for the applicant’s benefit. There is no evidence or suggestion before the Tribunal that the visa applicant is engaged to be married, is or has been married or in any de facto spousal relationship or is working on a full-time basis.

4. With no evidence (credible) to the contrary, the Tribunal is satisfied that the visa applicant is the dependent adopted child of the review applicant and the main applicant and therefore members of the family unit of the review applicant, consistent with regulations 1.04, 1.05A and 1.12 on a continuing basis since the visa application was lodged.

5. The Tribunal is satisfied the visa applicant remains the adopted dependent child of the review applicant and his spouse at the time of making this decision.

6. Accordingly, the visa applicant satisfies 309.321as part of the relevant criteria in this matter.

7. 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

8. The Tribunal remits the application for Partner (Provisional) (Class UF) visa for reconsideration, with a direction that the visa applicant meets the following criteria for a Subclass 309 Partner (Provisional) visa:

   ·cl 309.311 of Schedule 2 to the Regulations; and

   ·cl 309.321 of Schedule 2 to the Regulations.

   Peter Vlahos
   Member