1414989 (Migration)

[2016] AATA 3305

1414989 (Migration) [2016] AATA 3305 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Nadeem Gazdar

VISA APPLICANT:  Muneeb Ur Rehman Gazdar

CASE NUMBER:  1414989

DIBP REFERENCE(S):  2013031857

MEMBER:Mary Urquhart

DATE:17 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 17 February 2016 at 12:40pm

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 1 July 2014 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Muneeb Ur Rehman Gazdar applied to the Department of Immigration for the visa on 25 September 2013. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211.

4. The delegate refused to grant the visa on the basis that cl.101.211 (2) (d) was not met as he was not satisfied that the adoptive parent of the applicant has lawfully acquired full and permanent parental rights of adoption.

5. The applicant applied to the Tribunal for review of the delegate’s decision.

6. The review applicant was represented in relation to the review by his registered migration agent.

7. On 11 November 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the review application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 6 January 2016.

8. On 6 January 2016 the hearing was postponed as an interpreter was required and was not available.

9. On 6 January 2016 further documentation was submitted to the Tribunal  including

   ·     A submission  summarising the application

   and

   ·     Photographs;

   ·     Receipts for the transfer of money and a remittance statement;

   ·     A copy of  the visa applicant’s  birth certificate ;

   ·     3 Affidavits

   ·     An adoption deed.

10. On 12 January 2016 the Tribunal wrote to the applicant inviting the applicant to attend the resumption of the hearing adjourned on 6 January2016 on Wednesday 17 February 2016 at 11 am.

11. When the hearing invitation was sent it put the applicant on notice that if he failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

12. On 17 February 2016 the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances, the Tribunal has decided, pursuant to .s.362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this matter is whether the visa applicant meets the requirements for the grant of a Child (Migrant) Class (AH) Subclass 101 visa.

15. The sponsor claims that he and his wife are the adoptive parents of the applicant. It is claimed the applicant was adopted on 15 May 2012 by means of an “Adoption Deed’. The Deed was signed by the applicant’s biological parents Naeem Gazdar and Nusrat Gazdar. The sponsor claims he is the paternal uncle of the applicant.

16. The review applicant claims that though Pakistan does not have the same adoption laws as Australia it does have customary practices which it is submitted are deemed adoption.

17. It is submitted the child was adopted before the review applicant became an Australian Permanent resident.

18. It was submitted the visa applicant considers the review applicant to be his father and has had close ties with him since an early age.

19. It was submitted the review applicant provides financially for the child.

20. It is submitted that the sponsor lives in Dubai and that the visa applicant has visited him there. However it is claimed that as a result of stringent visa conditions in the Emirates the child has been unable to secure residency rights in Dubai with the review applicant.

21. It was submitted that the application has not been contrived to secure Australian residency for the visa applicant.

22. As set out above the applicant did not attend the hearing on 17 February 2016 or contact the Tribunal to explain his failure to attend. As the review applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.

23. The delegate‘s decision refers inter alia to a number of concerns including the claimed process of adoption and adoption deed. The delegate also records concerns that Islamic countries like Pakistan do not have in place a system of adoption that severs the legal rights of the child with its biological parents. The delegate found the relationship between adoptee and adopter is not significantly closer than any other relationship.

24. The Tribunal has carefully considered the claimed adoption and all the evidence in support of this. The Tribunal accepts that the sponsor became a permanent Australian Resident on 23 May 2012 some 8 days prior to the adoption.

25. The Tribunal has carefully examined the claimed Adoption Deed dated 15 May 2012. The Tribunal finds it is not a Court issued custody order and places no weight on this to satisfy itself that there has been a legal adoption through the family Court or any other Court.

26. The Tribunal notes country information that Pakistan does not follow the Hague Convention guidelines on adoption. The Tribunal takes into account that the review applicant on the one hand claims to have affected the adoption by adoption deed and on the other submits that that though Pakistan does not have the same adoption laws as Australia it does have “customary practices”  which it argues are deemed adoption and which  the review applicant also relies upon

27. The Tribunal has carefully considered the submission in regard to customary adoption. It has considered the affidavit material from the child’s biological parents. It has given due consideration and acknowledges evidence of financial support.  However, it is a requirement of the regulations that the adoptive parent has lawfully acquired full and permanent parental rights by the adoption. On the basis of country information (MRT advice 28 January 2010) the Tribunal finds that customary adoption in Pakistan does not sever the rights of the child from its biological parents and accordingly finds the claimed adoption does not satisfy Reg.1.04 (1) (b).

28. The visa applicant has made claims against the requirements of a Subclass 102 (Adoption) visa. The Tribunal again refers to the fact and points out that Pakistan is not an Adoptive Convention country. The Tribunal finds there is no evidence in support of the child satisfying the criteria that the prospective adoptive parent be approved by a competent authority in Australia as a suitable adoptive parent. As this element is not the Regulations cannot be satisfied.

29. No claims have been made in respect of an (Orphan Relative) visa.

30. Having considered the evidence singularly and cumulatively the Tribunal is unable to be satisfied that the visa applicant meets the requirements of Visa Class AH Subclasses Child Migrant, 102 Adoption or 117 Orphan relative.

31. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Mary Urquhart
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    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 that person; or

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

    1.05A Dependent

    (1)Subject to sub regulation (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.

    …