Reech Ajang (Migration) - [2024] ARTA 645

REECH AJANG (MIGRATION) [2024] ARTA 645 (15 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr David Boi Arok Reech Ajang
Visa Applicant:  Mr Chol Alaak Reech
Respondent:  Minister for Home Affairs
Tribunal Number:  2409178

Tribunal:General Member J Clarke
Place:Melbourne
Date: 15 November 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 15 November 2024 at 12:25pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – applicant is the sponsor’s cousin – neither a cousin or a second cousin is recognised as a permitted familial relationship in the definition of ‘relative’ – applicant is not an orphan relative – credible witness – appropriate to make a referral to the Minister – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03,1.14, Schedule 2, cls 117.211,117.221
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 22 February 2024 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 117 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 31 August 2018, the visa applicant applied for the visa. It is claimed that, at the time of application, the visa applicant was 17 years of age and that, at the time of this decision, he is 23 years of age.
At the time of this decision, the review applicant and sponsor is 44 years of age. It is claimed that the review applicant has adopted the visa applicant by way of customary adoption.
At the time of application, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, specific claims have been made in respect of the Subclass 117 visa.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 and cl 117.221.
Clause 117.211 is in the following form.
The applicant:
(a) is an orphan relative of an Australian relative of the applicant; or
(b) is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).
The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221.
‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a ‘close relative’ (a defined term): reg 1.03. The definition of ‘close relative’ includes a child of the person. It is claimed that the review applicant is the relevant Australian relative.
To be an orphan relative for the purpose of the definition in reg 1.14, the person must not have turned 18 years of age (paragraph (a)(i)); must not have a spouse or de facto partner (paragraph (a)(ii)); and must be a ‘relative’ of that other person (paragraph (a)(iii)). Further, it must also be that the person cannot be cared for by either parent because each parent is dead, permanently incapacitated or of unknown whereabouts (paragraph (b)). Finally, there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant (paragraph (c)).
The review applicant provided the Tribunal with a copy of the delegate’s refusal decision. The delegate refused to grant the visa because the delegate was not satisfied that the applicant met cl 117.211 and cl 117.221 because the delegate was not satisfied that the visa applicant was a relative of the review applicant as required by reg 1.14(a)(iii). In view of this finding, the delegate did not consider it necessary to make findings about the other requirements in reg 1.14.
On 23 April 2024, the review applicant applied to the Tribunal for the review of the primary decision. The review applicant was unrepresented in this review.
On 23 August 2024, the review applicant appeared, by video from Western Australia, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, by telephone, from Ms Aker Beng (the review applicant’s partner). The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. The interpreter attended the Tribunal hearing by video.
Before the conclusion of the hearing, the Tribunal granted the review applicant further time, until 30 August 2024, to submit any further evidence in support of the case.
At the time of this decision, no further evidence has been submitted. Rather, on 9 September 2024, the review applicant wrote to the Tribunal, relevantly explaining:
The member asked me to ask the child whether, he got the school records/report form or not. I contacted the child immediately after the hearing. The child told me that, they were school reports forms but they got lost.
After consideration of the law and the evidence before the Tribunal, the Tribunal considered it necessary to invite the review applicant to a further hearing. On 21 October 2024, the Tribunal invited the review applicant to a further video hearing to be held on 11 November 2024.
On 11 November 2024, the review applicant appeared by telephone rather than video as he had problems connecting by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. The interpreter attended the Tribunal hearing by video.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, at the time the visa applicant applied for the visa on 31 August 2018, he met cl 117.211 and whether, at the time of this decision, he meets cl 117.221.
In assessing the various issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file as well as to the oral evidence given at the hearings held on 23 August 2024 and 11 November 2024.
Is the visa applicant an orphan relative of an Australian relative?
As will be explained, the Tribunal finds that, at the time of application for the visa, the visa applicant did not meet cl 117.211 and, at the time of this decision, he continues not to meet cl 117.211 and not only because he has turned 18. Accordingly, at the time of this decision, he does not meet cl 117.221.
Relative – reg 1.14(a)(iii)
Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.
As has been explained, the delegate was not satisfied that the visa applicant met this requirement. The delegate relevantly stated:
The current application was lodged on the basis that the [visa] applicant is the cousin of the sponsor who is an Australian Citizen. In the Form 40CH – Sponsorship for a child to migrate to Australia, at question 14, the sponsor advised that the [visa] applicant is his cousin. This relationship is reiterated in a personal statement submitted by the [visa] applicant which states: ‘[…] when my uncle committed suicide I had to contact my cousin David Bol Arok Reech Ajang to rescue [me] from this terrible situation’. The [visa] applicant also stated in his sworn affidavit: ‘I reside in Kenya with my cousin Reech Ajang David Arok and his family’.
Whilst I can accept that it is common cultural practice in the South Sudanese community for family members to take on the care of their relatives’ children, the [visa] applicant is still required to meet the relevant legal requirements that are specified in the Regulations. In the current visa application, the [visa] applicant has not provided any documented evidence to show that he was legally adopted into the sponsor’s family or that any customary adoption arrangements were made. The documented evidence provided by the [visa] applicant indicates that the [visa] applicant is the sponsor’s cousin.
As the definition of ‘relative’ and ‘close relative’ provided in Regulation 1.03 does not include a cousin relationship or child of the cousin relationship, and having considered the relationship between the [visa] applicant and the sponsor as presented in this application along with the supporting documents provided by the applicant, I am not satisfied that the [visa] applicant is a ‘relative’ of the sponsor and that he meets the definition of ‘orphan relative’ as set out in Reg 1.14(a)(iii).
At the first hearing, the Tribunal asked the review applicant how he and the visa applicant were related as cousins. He gave credible oral evidence that his father and the visa applicant’s father were cousins.
From review of the law and the facts in this case, the Tribunal finds that, at both the time of application and at the time of this decision, the visa applicant did not meet and does not continue to meet the provisions in cl 117.211(a)—that is, that the applicant is an orphan relative of an Australian relative of the applicant. This is because, according to the visa applicant’s evidence outlined in the delegate’s refusal decision, he and the review applicant are cousins and, according to the review applicant’s oral evidence at the first hearing, they are second cousins. As the delegate noted in the primary decision, neither a cousin or a second cousin is recognised as a permitted familial relationship in the definition of ‘relative’ in reg 1.03. Accordingly, the visa applicant does not meet reg 1.14(a)(iii) and thus he is not an ‘orphan relative’—as defined in reg 1.14—of an Australian relative.
At the first hearing, the review applicant also gave credible oral evidence that he had adopted the visa applicant pursuant to the customary law of South Sudan. He said that there was no formal or legal adoption in South Sudan and that if someone does that, ‘it is faked’. He acknowledged that the legal position was different in different countries. He said that, in his culture, anyone—man or woman—can adopt a child of one of their relatives. He said that, according to his culture, anyone who was able to help a child could adopt and that this was so, even if the parents ‘are there’. He said, ‘culturally, we help one another’. He said that the Government did not really help orphans. He said that he had a cultural right and duty to adopt the visa applicant because they were relatives and the visa applicant’s father had been killed and his brothers ‘went in different directions’. He explained that ‘Chol looked for a way to come to me’. The review applicant stated that, before the visa application was lodged, he had read the form as he knew that the visa applicant would need to meet all the criteria otherwise it would be a waste of the review applicant’s money.
The Tribunal asked the review applicant when he had adopted the visa applicant. He said that he had done this when the visa applicant had informed him that the visa applicant’s uncle—who had been caring for him—had shot himself. He said that he thought that this was in around 2017. He said, ‘I took responsibility to care for him as if he is my own child’. He explained that he had moved the visa applicant from Uganda to Kenya. He said that no one else was helping the visa applicant and that is why he had taken on ‘the burden’. He said that it was ‘a big burden’. The Tribunal found the review applicant to be credible and accepts his oral evidence about these matters.
Ms Aker Beng, the review applicant’s partner, also gave credible oral evidence that the review applicant had taken on cultural responsibility to care for the visa applicant, and she said that the review applicant supports the visa applicant. The Tribunal found Ms Beng to be credible and accepts her oral evidence about these matters.
At the second hearing, the Tribunal explained to the review applicant that it considered that the visa applicant did not meet the relevant provisions. The Tribunal referred the applicant to the decision of the Federal Court of Australia in EC v MIMIA.[1]
[1] (2004) FCR 438.
This case concerned the scope of cl 117.211(b)—that is, the alternative provision. This provides that the applicant is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).
The Court held that the Explanatory Statement to the Migration Amendment Regulations 2002 (Cth) (No 2)—that introduced cl 117.211(b)—confirms that cl 117.211(b) ‘provides for the situation where an adoption prevents a person satisfying the definition of “orphan relative”[2] and not for the circumstance where an adoption enables a person to satisfy the definition of “relative” but not “orphan relative”’.[3]
[2] The case extracted, at [28], part of the Explanatory Statement which explained, ‘[u]nder paragraph 1.14(b) of the Migration Regulations, an applicant for a visa is an “orphan relative” where he or she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. As the definition of “parent” in regulation 1.03 includes an adoptive parent, an applicant who has been adopted by his or her Australian relative has been unable to be granted a Subclass 117 (Orphan Relative) visa, and in most cases has also been unable to satisfy the criteria for any other visa subclass.’ [Emphasis in the Court’s extract]
[3] Ibid at [29].
In other words, in the circumstances where there has been an adoption, the required relative relationship must exist outside of, and predate, the adoption relationship for the applicant to meet the alternative criterion in cl 117.211(b).
In the present case, it is claimed that the review applicant has adopted the visa applicant. According to the parties’ evidence, before the claimed adoption, they were cousins or second cousins and, as has been explained, these prior relationships are not permitted familial relationships in the definition of ‘relative’ in reg 1.03 and so the visa applicant does not meet the definition of ‘orphan relative’. As was explained in the case of EC v MIMIA, cl 117.211(b) does not operate so as to enable a person to satisfy the definition of ‘relative’ but not ‘orphan relative’. In order words, notwithstanding that the visa claims that he has been adopted by the review applicant, he cannot rely on cl 117.211(b) to overcome the fact that before that claimed adoption, he did not meet the definition of ‘orphan relative’ because he and the review applicant were cousins or second cousins.
For these reasons, the Tribunal finds that, at both the time of application and at the time of this decision, the visa applicant did not meet and does not continue to meet the provisions in cl 117.211(b)—that is, that the applicant is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).
CONCLUSION
Given the findings above, the Tribunal is not satisfied that the visa applicant meets cl 117.211(a) or (b). Accordingly, the Tribunal finds that neither cl 117.211 or cl 117.221 is met.
For the reasons above, the criteria for the grant of a Subclass 117 visa are not met.
There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 101 or Subclass 102).
Notwithstanding, the Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 101 (Child) visa as the evidence before the Tribunal is that, at the time the visa applicant applied for the visa on 31 August 2018, he did not meet the requirements of cl 101.211(1)(c)(ii). This time of application provision concerns the case of a visa applicant who is an adopted child. It requires:
(1) The applicant:
…
(c) …
(ii)was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
The evidence before the Tribunal is that the review applicant attained Australian citizenship on a specified date in the final quarter of 2006. As has been noted, the review applicant’s oral evidence in this review is that he adopted the visa applicant ‘in around 2017’. Therefore, at the time the visa applicant applied for the visa on 31 August 2018, he did not meet the requirements of cl 101.211(1)(c)(ii) because at the time of the claimed adoption, ‘in around 2017’, the review applicant was already an Australian citizen. According, the visa applicant does not meet the requirements for a Subclass 101 (Child) visa.
In addition, the Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 102 (Adoption) visa as the evidence before the Tribunal is that, at the time the visa applicant applied for the visa on 31 August 2018, he did not meet the requirements of cl 102.211(1). Clause 102.211(1) requires the applicant to meet the requirements of subclause (2), (3), (4) or (5).
The Tribunal finds that the visa applicant does not meet the provisions in subclause (2). This time of application provision concerns the case of a visa applicant who, when a child under 18 years of age, was adopted outside Australia by a person who had been living outside Australia for more than 12 months at the time the visa application was made. The evidence before the Tribunal is that, at the time the application for the visa was made on 31 August 2018, the review applicant had not been living outside Australia for more than 12 months.
The Tribunal finds that the visa applicant does not meet the provisions in subclauses (3), (4) or (5) either.
Subclauses (3) and (4) are not relevant to the visa applicant’s circumstances as both concern prospective adoptions yet at the time of application on 31 August 2018, it is claimed that the visa applicant had already been adopted. Accordingly, the Tribunal finds that the visa applicant does not meet cl 102.211(3) or (4).
The Tribunal also finds that subclause (5) is not relevant to the visa applicant’s circumstances because it concerns an adoption in accordance with the ‘Adoption Convention’ in an ‘Adoption Convention country’. The terms ‘Adoption Convention’ and ‘Adoption Convention country’ are defined in reg 1.03 of the Regulations. ‘Adoption Convention’ is defined as meaning the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993. ‘Adoption Convention country’ is defined as meaning ‘a country that is a Convention country under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998’. Schedule 2 of those Regulations lists the Convention countries. South Sudan is not listed in Schedule 2. Accordingly, the Tribunal finds that the visa applicant does not meet cl 102.211(5).
In these circumstances, the visa applicant does not meet the requirements of subclause (2), (3), (4) or (5) and thus does not meet cl 102.211(1). According, the visa applicant does not meet the requirements for a Subclass 102 (Adoption) visa.
CONSIDERATION OF REQUEST FOR REFERRAL TO THE MINISTER FOR INTERVENTION
At the hearing, the applicant formally requested the Tribunal to refer the matter to the Minister for his consideration.
Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether the Tribunal had the power to make that other decision or not.

In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Minister’s Guidelines on ministerial powers (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).
The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.
In this case, the Tribunal considers that the facts as claimed by the review applicant seem to best be described as:
strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The Tribunal accepts the review applicant’s oral evidence, given at the first hearing, that he had adopted the visa applicant—whom he said had been under 18 years of age when he had applied for the visa and not married or in a de facto relationship—and that financially providing for the visa applicant was ‘a big burden’ for him but one that he had taken on because there was no one else to provide financial support to the visa applicant.
He gave credible oral evidence, which is accepted, that the visa applicant’s father Mr Alaak REECH had been attacked and killed in 2008. He said that he had been attacked in the village. He said that the visa applicant’s step-brother had also been killed and that his half-brother had been kidnapped. He said that, subsequently, the village was deserted due to the fighting and looting. He said that there was no death certificate for the father’s death and noted that it was also uncommon for there to be birth certificates. He said that he did not know where he had been buried but he thought that it was ‘probably in the village’.
He also gave credible oral evidence, which is accepted, that the visa applicant’s step-mother Ading YOOL is deceased and that his mother, Ading GEU, is of unknown whereabouts. He said that when the village had been attacked, ‘everyone flew for their dear life’ and that the visa applicant and his mother had run in different directions. He said that, afterwards, the visa applicant’s maternal uncle[4] had brought the visa applicant to where he lived.
[4] Chol Gieu MANYOK.
At the second hearing, the review applicant told the Tribunal that the visa applicant ‘still depends on us’. He reiterated that, in his culture, ‘we support one another’. He speculated about whether that might change in the next generation but said, ‘now, this culture is still affecting us’. He said that if the visa applicant were permitted to migrate to Australia, the visa applicant could work and pay tax, with the implication being that he would no longer be dependent upon—and ‘a big burden’ for—the review applicant.
The Tribunal found the review applicant to be credible in all his oral evidence and accordingly accepts his evidence.
Having considered all the evidence before it, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Date(s) of hearing: 23 August 2024 and 11 November 2024
Representative for the Applicant: Unrepresented
ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.14Orphan relative
An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:
(a)the applicant:
(i)has not turned 18; and
(ii)does not have a spouse or de facto partner; and
(iii)is a relative of that other person; and
(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.