2015556 (Migration) - [2021] AATA 5011

2015556 (Migration) [2021] AATA 5011 (3 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2015556

MEMBER:David Crawshay
DATE:3 December 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 03 December 2021 at 9:46am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – usually resident in the household – dependent on the primary visa applicant – irregular money transfers for accommodation – customary adoption – consideration of referral for Ministerial Intervention – separation from the primary visa applicant – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, rr 1.03, 1.04, 1.05, 1.12; Schedule 2, cls 309.311, 309.321
CASES
Al Naqi v MIAC [2007] FMCA 874
Berenguel v Minister for Immigration and Citizenship (2014) 250 CLR 664
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants, being the [first-named visa applicant] and the [second-named visa applicant], applied for the visas on 30 September 2013 on the basis of being secondary applicants to the visa application of [Ms A], who is the primary visa applicant. The primary visa applicant applied for the visa on the basis of being in a partner relationship with [Mr B], who is the sponsor and the review applicant. There are four other secondary applicants attached to the visa application. These secondary applicants are claimed to be biological children of the primary visa applicant and review applicant.
The delegate refused to grant the visas on 9 December 2019 on the basis that the visa applicants did not satisfy the requirements of cl.309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 309.311 of Schedule 2 relevantly requires the visa applicants to be members of the family unit of a person who satisfies the primary criteria in Subdivision 309.21 at the time of application.
The review applicant appeared before the Tribunal on 22 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants, and from the primary visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The review applicant was represented in relation to the review by his registered migration agent, [named]. The representative attended the Tribunal hearing and provided detailed submissions.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the visa applicants:
·were members of the family unit of the primary visa applicant at the time of application and satisfy cl.309.311 of Schedule 2 to the Regulations; and/or
·are able to satisfy one of the two alternative requirements of cl.309.321 in relation to being members of the family unit of the primary visa applicant at the time of this decision.
Non-disclosure certificate
The Tribunal made the review applicant and his representative aware of a s.375A non-disclosure certificate that had been placed on a number of Department folios because the Department considered that disclosure of the information in these folios would allow the identity of a confidential source to be revealed. The Tribunal told the review applicant that the folios appeared to be internal Department notes and automatically-generated records, and that it could not divine from the folios how the identity of a confidential source could be revealed.
The Tribunal told the review applicant that, as a result, it did not consider the certificate to be valid. However, it told him that it did not intend to reveal the information in the folios to him as the information did not appear to reveal information that should be put to him including under s.359AA of the Act. It did, however, tell him that it would ensure that the folios would remain available to him should he request them (subject to their not being covered by another provision).
The time of application criterion
Clause 309.311 is required to be satisfied at the time of application. It provides as follows:
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.
Section 5(1) of the Act provides that “member of the family unit” of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides “member of the family unit” has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.
At the time the visa was applied for, r.1.12(1) provided as follows:
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.
[emphasis in original]
In this instance, the Tribunal has considered whether the visa applicants fulfil the criteria of being “relatives” under r.1.12(1)(e).
Relatives of the primary visa applicant or of the review applicant
A person is a relative of the family head or of his or her spouse or de facto partner if that first person is a parent, child, sibling, grandparent, grandchild, aunt, uncle, niece, nephew or step-equivalent: r.1.03 of the Regulations. In this instance, the visa applicants are claiming to be the step-sisters of the review applicant, who himself is the spouse of the primary visa applicant. In this regard, they are claimed to be her sisters-in-law.
When considering whether the visa applicants met the requirements under in relation to “relative” under r.1.12(1)(e) for the time of application criterion under cl.309.311, the Tribunal must be satisfied that she was a relative of the family head or of a spouse or de facto partner of the family head, did not have a spouse or de facto partner, was usually resident in the family head's household, and was dependent on the family head.
The Tribunal has had regard to Department notes dated 21 September 2020 that indicate satisfaction with the visa applicants’ identities based on their tazkeras and passports. It has seen no evidence to displace this initial finding of the Department.
The Tribunal accepts that the visa applicants are the sisters of the review applicant.
Turning to the relationship between the review applicant and the primary visa applicant, the Tribunal has considered a document entitled “Marriage Certificate” dated 13 October 2010 (refer Department folio 203) which states that the review applicant and the primary visa applicant were legally married in or around 2000, although it had been said elsewhere that they married in 2003. In spite of this inconsistency, the Tribunal accepts that the parties are married.
The visa applicants are therefore relatives of the de facto partner of the primary visa applicant, and the requirement in the chapeau of r.1.12(2)(e) is met.
Did any of the visa applicants have a spouse or de facto partner?
The Tribunal has considered if the visa applicants had a spouse or de facto partner at the time of application. There is no evidence to show that either visa applicant was married or in a de facto relationship at the time of application in September 2013. The Tribunal is satisfied that the visa applicants met the requirements of r.1.12(1)(e)(i) at the time of application.
Were the visa applicants usually resident in the household of the primary visa applicant?
The Tribunal has considered if the visa applicants were usually resident in the primary visa applicant’s household at the time of application.
The visa applicants currently live in Quetta, Pakistan, with the primary visa applicant and her biological children. The evidence at hearing was that the visa applicants travelled from Afghanistan to Quetta in mid-2010 with the help of a smuggler. They were said to have made the journey with their mother (who was still alive at this stage),[1] as well as with the primary visa applicant and their two sons, and nephews who were sons of the primary visa applicant’s brother. The parties told the Tribunal that the father of the visa applicants had earlier died in around 2003, just after the marriage of the review applicant and the primary visa applicant. In Quetta, they were said to have settled in a house together. The Tribunal notes that the evidence given by multiple people, including the review applicant and primary visa applicant, was consistent on this point. It also notes movement records showing that the review applicant travelled offshore in September 2010 and returned in March 2011 and it accepts that he travelled to meet his family during this time and that it was in Quetta.
[1] The visa applicants’ mother is the step-mother of the review applicant.
Based on the above evidence, the Tribunal is satisfied that the visa applicants were usually resident in the household of the primary visa applicant and that they met the requirements of r.1.12(1)(e)(ii) at the time of application.
Were the visa applicants dependent on the primary visa applicant?
The Tribunal has lastly considered if the visa applicants were dependent on the primary visa applicant. In this regard, r.1.05A(1) relevantly states as follows:
(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.
[emphasis in original]
Regulation 1.05A(2) relates to protection, refugee and humanitarian visas and is not applicable.
“Incapacitated for work” means that a visa applicant must be at least substantially incapacitated for paid work. No evidence was given that the visa applicants were incapacitated in this way at the time of application. Regulation 1.05A(1)(b) does not apply.
The Tribunal heard from the review applicant at hearing that his support to his family in Pakistan has not been regular. He said that it is now between AUD800 and AUD1,200-per-month. He said that he would previously send less money but now because of COVID-19 he sends more. He said that the primary visa applicant’s support, which she derives as a dressmaker or tailor, varies between PKR8,000 and PKR12,000-per-month. The Tribunal finds that this equates to between AUD81 and AUD121 as at 30 September 2012 and at 30 September 2013,[2] and between AUD68 and AUD102 as at 1 December 2020 and between AUD64 and AUD96 as at 1 December 2021[3]).
[2]
The review applicant also stated that the primary visa applicant’s other source of income was rental payments she received for a shop she owns in Kabul. When it was asked how much rental the primary visa applicant received in rental, the review applicant said that it was AFN3,000-per-month (which equates to around AUD51 as at 30 September 2012 and 30 September 2013,[4] and AUD54 as at 1 December 2020 and AUD44 as at 1 December 2021[5]).
[4] >
Lastly, the review applicant said that he has paid a sum of around AUD20,000 for the house where his family has been living in Quetta. He said that the arrangement was to pay an upfront fee and then for the tenants to live “rent-free”.
The Tribunal has reviewed evidence on the Department and Tribunal files. It has considered the contents of each visa applicant’s Form 47A “Details of child or other dependent family member aged 18 years or over”, both signed on 25 December 2019, where it was stated that PKR2,000-per-week has been provided to each visa applicant by the primary visa applicant since their births. Additionally, a printout of money transfers from the review applicant to the primary visa applicant’s son, [named], on her behalf shows 20 transfers made over a period from September 2016 until December 2019. The amounts and frequency of the transfers vary – he sent AUD774 in one lot in September 2016, AUD7,416 over nine lots in 2017, AUD10,296 over seven lots in 2018, and AUD4,000 over three lots in 2019. The total of these transfers is AUD22,486, which averages out over the period at roughly AUD580-per-month.
The Tribunal has considered the above evidence. It accepts that the visa applicants and the primary visa applicant have had no major sources of income other than those detailed above. It accepts that the visa applicants were wholly supported for shelter by the review applicant at all materials times, the review applicant having paid a sum of around AUD20,000 for their ongoing accommodation in Quetta. It accepts based on the evidence that while the primary visa applicant may have provided some financial support to the visa applicants, including in respect of their food and clothing, the vast majority of their financial support during the operative period came from the money given to the primary visa applicant by the review applicant. In this regard, it gives weight to evidence such as the printout of money transfers showing that the review applicant provided around AUD580-per-month to his family in Pakistan over a period from 2016 to 2019. This compares with the estimate of, at best, AUD172-per-month that was able to be provided by the primary visa applicant through her income as a tailor and through rental payments from a property she leases out in Kabul.
The Tribunal has lastly considered if the financial support from the review applicant to the visa applicants can be characterised as financial support from the primary visa applicant (who in the context of r.1.05A is the “other person”). If it can be characterised in this way, then r.1.05A(1)(a) will be satisfied; if not, then that subregulation will not be satisfied. The basis for the Tribunal’s view is the decision of the Federal Magistrates’ Court in Al Naqi v MIAC [2007] FMCA 874, where the Court stated that, “on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided”: [16]. In the present case, the evidence from the review applicant and primary visa applicant clearly indicates that most of the financial support received by the visa applicants was given by the review applicant and not by the primary visa applicant. The Tribunal finds that the spousal relationship between the review applicant and the primary visa applicant is not an essential or substantial part of the reason for the financial support being provided to the visa applicants, rather it was the strong existing familial relationship between the visa applicants and the review applicant that is the reason. The Tribunal finds that the review applicant would continue to provide such financial support to the visa applicants in the event that his spousal relationship with the primary visa applicant were to cease, as he is their brother and their main source of financial support.
Therefore, the Tribunal is not satisfied that, at all materials times including at the time of application, at the time of decision and for substantial periods immediately before those times the visa applicants were wholly or substantially reliant on the primary visa applicant for financial support to meet their basic needs of food, clothing and shelter or that this reliance was greater than on any other person or source of support. They do not meet the definition of “dependent” under r.1.05A at the time of application and at the time of decision (see below).
As the Tribunal has found that the visa applicants do not satisfy the definition of “dependent” under r.1.05A, they do not meet r.1.12(1)(e)(iii). As this is a cumulative requirement under r.1.12(1)(e), they do not satisfy that subregulation.
Were the visa applicants customarily adopted?
At hearing, the review applicant’s representative advanced an oral submission that the visa applicants should be considered to be “children” of the primary visa applicant due to their being customarily adopted by her. She stated that, in accordance with Hazara culture, children who are orphaned are taken in by the eldest brother and that, accordingly, the review applicant assumed responsibility for the visa applicants after the death of their father and then, after the death of their mother, he and the primary visa applicant took custody of them. The representative submitted that the relationship between the visa applicants and the primary visa applicant is more a maternal one rather than as between sisters-in-law.
As stated above, r.1.12(1)(b) states that an applicant will be found to be a member of the family unit another person (referred to as the family head) if that applicant is a dependent child of the family head or of a spouse or de facto partner of the family head.
“Dependent child” has the following definition under r.1.03:
"dependent child ", of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-child's bodily or mental functions.
A non-exhaustive definition of “child of a person” is found in s.5CA of the Act, which states as follows:
(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.
(2)   The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3)   Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
[emphasis in original]

As the visa applicants are sisters-in-law of the primary visa applicant, the Tribunal has proceeded to assess whether they satisfy the requirement of being adopted children under s.5CA(1)(b).
Under r.1.04, “adoption” is defined as follows:
(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 the adopter is significantly closer than any such relationship between the adoptee and any other person or 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 Australian migration requirements.
[emphasis in original]
The requirements of r.1.04(1) are alternative requirement, meaning that the visa applicants only need satisfy one of these and not all three.
Do the visa applicants meet r.1.04(1)(a) or r.1.04(1)(b) in relation to formal adoption?
Based on the evidence in front of the Tribunal, including testimony from the parties and from the primary visa applicant, it finds that the visa applicants do not satisfy the requirements of r.1.04(1)(a) relating to formal adoption under Australian law or r.1.04(1)(b) relating to formal adoption under the law of another country. In this regard, there is no written document to evidence formal adoption of the visa applicants made in accordance with the laws of Australia, Pakistan, Afghanistan or any other country.
Do the visa applicants meet r.1.04(1)(c) and r.1.04(2) in relation to customary adoption?
The Tribunal has considered whether the visa applicants meet the requirements of r.1.04(1)(c), which relate to customary adoption. In this regard, every one of the cumulative requirements of r.1.04(2)(a), r.1.04(2)(b) and r.1.04(2)(c) must be satisfied.
When questioned about who was living at the house with the visa applicants when his and their father died, the review applicant said that his older brothers [Brother C] and [Brother D] were there. He told the Tribunal that [Brother C] and [Brother D] were not living there when his family moved from Afghanistan to Pakistan in 2010.
The review applicant said that, when his father was sick, he verbally recited his will. The review applicant said that his father told him to take care of his step-mother and the visa applicants. He claimed to have told his father that he would take care of his three sisters until they were married. He said that one sister – [named] – married, but the other two sisters – the visa applicants – remained his responsibility. He said that responsibility for the visa applicants was shared between him and his step-mother until she died, at which time it shifted to him.
The Tribunal put to the review applicant and the primary visa applicant that it understood the eldest brother would act as guardian or custodian. He replied that traditionally, the eldest brother gets married first and the younger brother stays behind to care for the parents. The Tribunal remarked that [Brother D] and [Brother C] (who are older than he is) were also living in their home at the time of their father’s death. He replied that in this instance, his father gave him responsibility in his verbal will. The primary visa applicant said that a mother (which in this case included her daughters including the visa applicants) traditionally stays with her youngest son and that the verbal will of the review applicant’s father made this explicit.
At hearing, the Tribunal indicated that it would allow the review applicant’s representative additional time to provide written submissions on this point. On 29 November 2021, the representative submitted a detailed submissions letter of the same date.
The letter gave a detailed summary of the testimony given by the review applicants and witnesses at hearing before addressing the issue of adoption. It argued that there was no system of formal adoption in Afghanistan, and so there was no process which the review applicant could go through that was equivalent to adoption under the laws of the West including Australia. The Tribunal is aware through various sources including, significantly, Art. 228 of the Afghan Civil Code (ACC) that adoption is not recognised in Afghani law. Furthermore, and in relation to Pakistan where there is no corresponding statement, it may be said that the general principles of Shari’a do not recognise adoption in the legal sense, as illustrated by the following extract from the book Politics of Adoption:
Islam does not, strictly speaking, recognize the term ‘adoption’. In most Islamic states, adoption as it is known in western nations is impossible. Any process that purports to alter family genealogy, to change the authentic identity of an individual and potentially disadvantage ‘legitimate’ children, is generally frowned upon in Muslim culture. Adoption in particular is anathema as it involves the permanent and absolute transfer of parental rights to adoptive parents, a denial of ancestry and falsifying of bloodlines.[6]
[6] K O’Halloran, The Politics of Adoption: International Perspectives on Law, Policy & Practice, (Springer, 2^nd ed, 2009) 38.
The letter then argued that the presence of elder male siblings does not of itself undermine the fact of a customary adoption taking place. In support of this submission, the representative pointed to a recent decision of the Tribunal (differently constituted) in a matter whose circumstances were said to be similar (recent decision).[7] Having reviewed that decision, however, it appears clear that the purported customary adoption there was made by the eldest brother in that family. Another, earlier decision from the Tribunal (differently constituted) in 2011 was cited where a customary adoption was found to have taken place (earlier decision).[8] However, upon reading the facts of that matter, it is not clear whether the adopter brother had other brothers, let alone brothers who were older than he was. To the extent that these decisions may be persuasive, given that they are not binding, the Tribunal considers that they do not support the representative’s submission and are given little weight.
[7] 2101516 [2021] AATA 3651.
[8] 1007745 [2011] MRTA 15.
In the letter, the representative referred to a letter dated 3 June 2004 by Prof William Maley AM, who was then Professor and Director of the Asia-Pacific College of Diplomacy at the Australian National University, specialising in Afghan ethnography and Anthropology. The following part of Prof Maley’s letter was reproduced as follows in the recent decision:
A mother on remarriage loses custody rights to a child, and in any case these are extinguished in Hanafi jurisprudence upon a boy’s attaining the age of seven and upon a girl’s attainment of puberty. A natural mother would have no rights whatsoever in respect of a male approaching his twenties. ... Upon the death of her husband, protective responsibilities vis-à-vis those children would automatically be assumed by a male member of her late husband’s family. ... male children typically remain part of the family of the late father, and are for all practical purposes absorbed into that lineage through a process of recognition. This practice is so well entrenched that it could be said to enjoy the status of customary law. ...
For these reasons, and because of the huge disruption experienced by Afghan society in the 1980s and 1990s, it is a mistake to seek documentary evidence of the kind that one might seek in order to verify claims about marriage and child custody in Australia. In Afghanistan, such documents were not required as a matter of law, and often unobtainable as a matter of practice.[9]
[9] 2101516 [2021] AATA 3651 [45].
While this passage appears to state that a boy who has turned seven and a girl who has reached puberty will customarily be absorbed into the father’s family upon the death of the father, on its best reading it is silent as to the order of who among that family assumes protective responsibilities for that child. On a more unfavourable reading, however, it appears that protective responsibilities may be assumed by the eldest male member given the reference to absorption of the child into the “lineage” of the child’s late father, although this is not clear on the face of the words. The Tribunal accepts that Prof Maley is an expert in the area and gives the content of his letter some weight, although as it is unclear as to the hierarchy of entitlement for guardianship the Tribunal does not consider it probative of the issue.
Elsewhere in the recent decision, the following quotation was reproduced verbatim from the submissions in that matter:
Hazara society is patrilineal and patriarchal in general. Where a child’s father dies the father’s brother would then be responsible for the child. Traditionally this responsibility would be taken by the brother marrying his brother’s widow. In the absence of the deceased father having any brothers or other eligible male relatives, the eldest son would ordinarily inherit the responsibilities and duties of his deceased father. (Source: E-mails from Dr Alessandro Monsutti, an Italian anthropologist with the Graduate Institute of Development Studies in Geneva to the Refugee Review Tribunal on 17 February 2006 and 13 December 2008).[10]
[emphasis added]
[10] Ibid [46].
Again, the Tribunal is inclined to accord weight to the contents of this quotation as the author is an expert on anthropology who has written on the Hazara people.[11] However, unlike Prof Maley above, it is clear from the contents of the quotation that he believes there is a hierarchy of entitlement whereby the eldest son takes on his father’s responsibilities and duties. It considers this evidence to be directly probative of the issue.
[11] The Graduate Institute Geneva, “Profile: Alessandro Monsutti”, monsutti.
Dr Monsutti’s quotation appears to accord with information from other secondary sources, such as from the “Max Planck Manual on Family Law in Afghanistan” (Max Planck Manual).[12] The Max Planck Manual distinguishes between the periods of custody and guardianship in a child’s life. In the earlier period of custodianship, a motherless child is put into the custody of female members of the mother’s family before other people, including male members of her family or of the father’s family (including the father himself), and a hierarchy of entitlement is found by reference to Arts. 239, 240 and 241 of the ACC.[13] It is worth noting here that the ACC defines the period of custodianship in respect of girls as that period before she turns nine and not when she reaches puberty: Art 249 of the ACC.[14]
[12] Kabeh Rastin-Tehrani and Nadjma Yassari, “Max Planck Manual on Family Law in Afghanistan”, (Max Planck Institute for Comparative Public Law and International Law, 2^nd ed, 2012).
[13] Ibid 104-105.
[14] Civil Code of the Republic of Afghanistan, 5 January 1977 [tr Mohammad Fahim Barmaki] >
In the later period of guardianship, the hierarchy of entitlement is stated as follows in the Max Planck Manual:
The father’s right to exercise guardianship of person is not laid down in Afghani law. This priority can be concluded from the Article 71(1) CC [Civil Code] regarding guardianship in marriage of a girl aged between 15 and 16.
Moreover, in the section on the administration of property of a child of limited capacity of execution, the persons eligible for guardianship of property are listed. It is debatable whether these provisions can also be applied to the guardianship of person and whether the hierarchy of the persons authorised to administer the property of a child of limited capacity of execution can be applied to a child’s guardianship of person as well. However, as the law explicitly regulates the guardianship of property of a child of limited capacity of execution and is silent on the issue of guardianship of person, it seems more reasonable to speak of a legal loophole.
In the absence of a legal provision, according to Article 1(2) CC the general principles of Hanafi law can be referred to as a means of interpretation, under which the father will be assigned as the guardian of person of a child with limited capacity of execution prior to anyone else. If the father is dead or unapt for guardianship of person, the question arises as to who else will be entitled to exercise guardianship of person in his place.
According to the general principles of Hanafi law, after the death of the father the guardianship of a person is transferred to his paternal grandfather. If the grandfather is dead as well, the guardianship of person will be granted to the next paternal male relative according to the legal order of succession. The hierarchy of those so-called agnatic heirs, who, in accordance with the general principles of Hanafi law, are entitled to exercise the guardianship of person after the demise of the father and the paternal grandfather, has already been described in the section on the persons entitled to custody. If there are no agnatic heirs suitable for guardianship of person, the guardianship will be transferred to those female relatives who are classed among the quranic heirs. These persons include the mother, followed by the paternal grandmother and finally the maternal grandmother. In case these people fail to be eligible for guardianship, it will be granted to the maternal grandfather. If the maternal grandfather is dead, the sister and her children and finally the paternal and maternal aunts and their children will be considered for the guardianship. With regard to those persons who do not have any legal guardian of person, Article 78 CC provides that the judge will be the legal guardian.[15]
[footnotes omitted]
[15] Rastin (n 12) 106-107.
The reference in the Max Planck Manual to the “agnatic heirs” is to “male and female relatives in the male line, i.e. between whom and the deceased no female intervenes”. According to the Max Planck Manual, these relatives are: the father, the paternal grandfather and male ascendants in the paternal line, the full brother, the paternal half-brother, the sons of the full brother, the sons of the paternal half-brother, the descendants of the full or half-brother, the paternal uncle and the paternal uncle’s son.[16] The Tribunal gives this evidence weight as being relevant to the issue.
[16] Ibid 104.
The letter then proceeded to what the Tribunal believes to be the essence of the representative’s submissions – namely, that although the available sources indicate that there is a hierarchy of entitlement for guardianship that includes prioritising an older brother over a younger brother, this is a “general societal practice” and should not be described as a “fixed legal practice”. In this regard, the letter states as follows:
We submit that an assessment of what is a customary practice, where strict and formal legal regulation is absent from a society, must be flexible enough to take into account the individual and particular circumstances of the family and the choices that might be made within a family group.
The letter made reference to the factual circumstances of the matter, where the review applicant’s father had made a verbal will entrusting the review applicant with responsibility for caring for the visa applicants, notwithstanding that there were other sons from which to choose. The Tribunal notes that this is consistent with the review applicant’s testimony at hearing and with the contents of a statutory declaration signed by him on 29 November 2021.
Among its concluding paragraphs, the letter submitted as follows in relation to Department policy on “Claimed adoption by siblings”, which itself states that an arrangement where a sibling assumes care for another sibling is not accepted as a child-parent like relationship and cannot meet the customary adoption provisions:
We submit that a policy guidance note such as this is not in accordance with the regulatory criteria that the policy is directed towards. The regulation involves consideration of customary adoption. Customary adoption involves a complex [sic] of considerations which are much more anthropological and ethnographic than they are analyses of legal structures within a given society. What is “customary” accordingly depends on what the custom actually is.
We submit that an inflexible application of this policy without regard to the particular merits of a given case would be unlawful. In the case of Drake, the Federal Court found that the statute governing the exercise of the Tribunal’s powers required it to reach the correct or preferable decision, not merely whether the decision conformed to government policy. While the Tribunal was entitled to treat government policy as a relevant factor, the Tribunal was still required to make an independent assessment and independent determination of whether the decision was the correct or preferable one.
[footnote omitted]
The Tribunal would hope that, through its thorough analysis of the issue and its findings below, it has demonstrated to the review applicant and to his representative that it has not applied the Department’s policy inflexibly but has considered the merits of this matter.
Having said that, however, the Tribunal must assess whether a customary adoption has taken place here. In terms of findings of fact, it finds that the visa applicants’ father died in or around 2003. It finds that the review applicant was not the eldest living brother within his family in March 2010 when the second-named visa applicant as the younger of the two visa applicants turned nine years of age (the first-named visa applicant having turned nine in [year]). It finds that the review applicant was the youngest of [number] male children of his father, and that at least one of his older brothers ([Brother C]) was living in Afghanistan in March 2010. No evidence was submitted showing that [Brother C] at the very least (and the review applicant’s other brothers who may have been living in Afghanistan or in neighbouring countries) was unable to assume the role of guardian at this time. It lastly finds that the visa applicants’ mother died in 2013 in an attack in Quetta.
In terms of the application of the principles of Afghan and wider Islamic law, customary or otherwise, as they relate to adoption, the Tribunal finds that formal adoption does not exist in certain Islamic countries such as Afghanistan. It accepts that, in the absence of such formal processes for adoption, arrangements that are akin to adoption are sometimes entered into whereby a third person steps in when a child’s mother, father, or both, are dead or are otherwise unable to care for that child. However, the Tribunal finds that such an arrangement does not necessarily equate to customary adoption. In this way, it does not agree with the submissions of the representative that the customary practice of adoption “must be flexible enough to take into account the individual and particular circumstances of the family and the choices that might be made within a family group”.

Instead, and having consulted various primary and secondary sources including those above, it finds that there appears to be consensus among authorities in this area that a hierarchy of entitlement exists where, relevantly, the eldest brother assumes responsibility for caring for a child whose father has died or is unable to offer such care during the period of guardianship. No evidence has been submitted to show otherwise.
The Tribunal accepts that the process of guardianship as laid down in the ACC and construed in accordance with Hanafi law, whereby members of the child’s family act as guardian of that child, may be regarded as a customary adoption in the absence of any formal adoption process. However, based on the above evidence and findings, it finds that such a customary adoption has not taken place here, as the visa applicants were not placed under the guardianship of the eldest of the review applicant’s brothers or at the very least a brother who was older than him as required by custom. The Tribunal is not therefore satisfied that the assumption of caring responsibilities by the review applicant vis-à-vis the visa applicants was an arrangement that was made in accordance with the usual practice, or a recognised custom, in the culture of the visa applicants as adoptees and the review applicant and primary visa applicant as adopters.
Therefore, r.1.04(2)(a) is not met. As r.1.04(2)(a) is a cumulative requirement of the definition of “adoption” under r.1.04, the visa applicants are not adopted children of the primary visa applicant or of the review applicant.
Because the visa applicants are not adopted children of the primary visa applicant, they do not satisfy s.5CA(1)(b) of the Act. There has been no evidence submitted to show that they satisfy any other subsection of s.5CA or that they may otherwise be regarded as children of the primary visa applicant.
As the visa applicants are not children of the primary visa applicant or of the review applicant, neither of them is a “dependent child” according to that definition under r.1.03.
The visa applicants not being dependent children of the primary visa applicant or the review applicant, they do not satisfy the definition of “member of the family unit” under r.1.12(1)(b) at the time of application.
Therefore, cl.309.311 is not met.
Time of decision criteria
Regarding the time of decision criteria, and to the extent that the Tribunal must make a finding in light of the court remittal by consent in the case of PEG265/2017,[17] it finds that the visa applicants are not members of the family unit of the primary visa applicant or the review applicant for the reasons given above; namely:
·in relation to whether they are dependent children of the primary visa applicant or of the review applicant under r.1.12(1)(b), because a customary adoption has been found not to have taken place; and
·in relation to whether they are relatives of the primary visa applicant under r.1.12(1)(e), because they are not dependent on the primary visa applicant in the manner required by r.1.05A for the reasons given in paragraphs 32 and 33.
[17] In PEG265/2017, the Court remitted the matter by consent in the following terms: “The first respondent [MIBP] concedes that the decision of the second respondent [Tribunal] is affected by jurisdictional error on the basis that the second respondent failed to consider whether the applicant’s adopted daughter, Seble Assefa Mekonnen, satisfied clause 309.321(b) of Schedule 2 of the Migration Regulations 1994 (Cth). The first respondent also concedes that if Seble Assefa Mekonnen did satisfy clause 309.321(b) she would not be required to satisfy clause 309.311 of Schedule 2 of the Migration Regulations 1994 having regard to the decision of the High Court in Berenguel v Minister for Immigration and Citizenship (2014) 250 CLR 664.”
They are therefore unable to satisfy the alternative requirements of cl.309.321(a) or cl.309.321(b), and cl.309.321 is not met.
MINISTERIAL INTERVENTION
Although the review applicant has not made a request for referral to the minister for his intervention under s.351 of the Act, the Tribunal thought it appropriate to consider such a referral in light of recent events.
In this regard, the Tribunal readily concedes that the situation for the visa applicants is difficult to say the least. It notes that the matter was given priority because of the resurgence of the Taliban in Afghanistan and the subsequent declaration of the Islamic Emirate there. Although the visa applicants are in Pakistan and not in Afghanistan, this in itself also presents with challenges. Hazaras have typically faced tough security circumstances in Pakistan, even in the relative sanctuary of Quetta.[18] Moreover, they are mostly undocumented and are extremely limited in their movements.[19] Owing to their lack of legal status, they have limited rights to remain in Pakistan. Recently, some Hazara refugees have been removed from Pakistan and sent back to Afghanistan although these deportees appear to have been new arrivals.[20]
[18] Department of Foreign Affairs and Trade, “DFAT Country Information Report: Pakistan” (20 February 2019) [3.32-3.36].
[19] Ibid [3.36].
[20] Saadullah Akhtar, “Fleeing Afghan Hazaras face uncertain future in Pakistan”, Aljazeera (20 September 2021), >
The situation will become even more difficult if the visa applicants are left in Pakistan while the primary visa applicant and her biological children leave there to come to Australia. Having said that, however, the Tribunal notes that the primary visa applicant and her biological children have yet to be granted visas to travel to Australia, and they remain in Pakistan along with the visa applicants. Unless and until her visa is approved, the primary visa applicant will likely continue to remain in Pakistan.
The Tribunal has considered that if it were to refer the matter to the minister for his intervention, it would effectively be arguing for the visa applicants to be brought to Australia and away from the primary visa applicant. Given that the primary visa applicant has been caring for the visa applicants since at least 2013 when their own mother died, it believes that this is not in their interests.
As such, the Tribunal will not be referring the matter to the minister for his intervention, although it would like to make clear that the only reason for its not doing so is because the visa applicants would be separated from the primary visa applicant – an arrangement it finds undesirable. It remains open to the review applicant to make this request of the minister personally and provide information in support.
DECISION
The Tribunal affirms the decision not to grant the visa applicants a Partner (Provisional) (Class UF) visas.
David Crawshay
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.
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