2100145 (Migration)

[2022] AATA 2424

2100145 (Migration) [2022] AATA 2424 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Rokhan Akbar (MARN: 1467818)

CASE NUMBER:  2100145

MEMBER:David Crawshay

DATE:5 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Provisional) (Class UF) visas.

Statement made on 05 April 2022 at 2:06pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – customary adoption has not taken place- visa applicants have not been placed under the guardianship of their eldest brother – visa applicants are not adopted children of the primary visa applicant or of the review applicant – do not satisfy the definition of “member of the family unit” – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.04, 1.12, Schedule 2, cl 309.311

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants, being the first-named visa applicant [and] the second-named visa applicant, [applied] for the visas on 7 October 2017 on the basis of being secondary visa 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 five other secondary visa applicants attached to the visa application. These other five secondary visa applicants are claimed to be biological children of the primary visa applicant and review applicant. The visa applicants themselves claim to be the brother of the review applicant.

3. The delegate refused to grant the visas on 17 December 2020 on the basis that the applicant 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 applicant to be a member of the family unit of the primary visa applicant at the time of application.

4. The review applicant appeared before the Tribunal on 27 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants, from the primary visa applicant, and from two other witnesses – [names deleted]. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. It was conducted remotely by means of Microsoft Teams video.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   The time of application criterion

8. 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.

9. 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.

10. At the time the visa was applied for, r.1.12 relevantly provides as follows:

    Scope

    (1)   This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)   A person is a member of the family unit of another person (the family head ) if the person:

    (a)   is a spouse or de facto partner of the family head; or

    (b)   is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)   is a dependent child of a person who meets the conditions in paragraph (b).

11. In this instance, the Tribunal has considered whether the visa applicants fulfil the criteria of being “children” of the family head or of a spouse or de facto partner of the family head under r.1.12(2)(b).

    Did any of the visa applicants have a spouse or de facto partner?

12. The Tribunal has considered if either of 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, engaged to be married or in a de facto relationship at the time of application in October 2017. The Tribunal is satisfied that the visa applicants met the requirements of the chapeau of r.1.12(2)(b) at the time of application.

    Were the visa applicants customarily adopted?

13. The review applicant’s representative submits that the visa applicants have been customarily adopted by the review applicant owing to their parents both being dead and the review applicant and primary visa applicant taking them into their care.

14. In terms of the relationship between the visa applicants and the review applicant, the Tribunal finds that they are brothers. It bases this finding on information contained in the Tazkeras that have been provided as part of the application – specifically, that the parties all share the same father, [Mr C].

15. In relation to the status of the parties’ mother, a submissions letter of 20 September 2021 stated that she had previously passed away. In the application form for the primary visa applicant’s partner visa dated 7 October 2017, his [mother] is listed as being deceased. No other evidence has been submitted in relation to her claimed death, such as a death certificate.

16. In the same submissions letter, it was stated that the parties’ father had also passed away, after being captured by the Taliban and killed in 2010 along with the parties’ oldest brother, to[Mr D]. The submissions stated that both of these men were members of the police force – the parties’ father being in the provincial police headquarters and [Mr D] an officer in the central prison of [a] Province.

17. The submissions letter did not advance any argument about an adoption having been made, and it was only at hearing that the review applicant’s representative made 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.

18. As stated above, r.1.12(1)(b) states that an applicant will be found to be a member of the family unit of 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.

19. “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.

20. 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]

21. As the visa applicants are brothers-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).

22. 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]

23. 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?

24. 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, 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?

25. 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.

26. A threshold issue exists as to whether the visa applicants’ father, [Mr C], and their eldest brother, [Mr D], have been abducted or killed as claimed. If their father has not died or had not died at the time of application at the very least, then it is highly unlikely that they would be considered to have been adopted (in a customary sense) given the rules on custody and guardianship which are explored in more detail below. Furthermore, if [Mr D] has not died or had not died at the time of application, then this would most likely have a bearing on who would have priority in terms of custody or guardianship which, again, is explored in more detail below.

27. In this regard, the Tribunal is concerned about the absence of documentary evidence of the death of the parties’ father and the abduction of [Mr D]. It put its concern about the lack of evidence of the abduction of [Mr D] to the review applicant at hearing, suggesting that it would be improbable for there to be no evidence of his abduction given that he was a member of the police force. The review applicant replied that he had some of his brother’s identification cards. Later in the hearing, the review applicant told the Tribunal that it is hard to gather evidence from the Taliban about them killing his brother. He said that it had been more than 10 years since the events. He said that people had witnessed him being killed.

28. Following hearing, the Tribunal received a submission letters dated 30 September 2021 where the review applicant’s representative relevantly stated as follows:

    As I stated during the Hearing, I made a genuine error in the Partner visa application on the part of the review applicant’s eldest brother not mentioning he was deceased, while I was instructed by my client that his eldest brother [Mr D] was missing. I do accept that it was an error on my part and I request that my client should not be penalized due to the genuine error I made, as his dependent brothers’ life are at risk in Afghanistan now and the review applicant and his wife bieng [sic] the guardians/customary adopted parents gravely concerned about their wellbeing given the current crisis in Afghanistan.

29. The representative’s claim related to a part of the application form dated 7 October 2017 where [Mr D] was listed as not being deceased. The relevant part of the application form read as follows (with the response in bold):

    Is the family member deceased?

    No

30. Included with the submissions letter were several attachments. The first two of these documents sought to demonstrate that the parties’ father and [Mr D] were policemen in [a province]. While the Tribunal accepts based on these documents that they may have been policemen at the time of the purported incidents, it is not satisfied that the documents evidence the disappearance or death of either.

31. The third document is purported to be two pages of a document titled “STATEMENT OF [Mr B]”. The document relevantly stated as follows:

    My father and by brother named [Mr D] were police officers. My brother was the controller of [a] jail. Most of our area was influenced by the Taliban. At day time the government army came for security but at night time the Taliban controlled the area

    At night Taliban use to come to my house and asked to join their team and take weapons to fight against Americans. And they threatened my father and brother to quit police and join them. They were threatening everybody in my area to join them.

    Approximately 2 months ago on Friday night, while I was in Kabul for Taxi Driving, the Taliban came to my house and kidnapped my father and my brother who were police officers. I had a phone call from my wife, she asked me not to come back as it would be in danger for my life.

    …

    When I was in [a named country], I have heard that my father has been killed by Taliban. But I didn’t hear any news for my brother yet.

    …

    I believe if I return to Afghanistan, I would be at a real risk of facing serious harm by Taliban because they kidnapped and killed my father and brother for the reason of police officer. I would be harmed by them as my father and brother.

32. The document was not signed or dated, although “2010” is typed on the page. The statement included the name “[deleted]”, purportedly as the person who was to witness the statement. A MARN registration number was also included. A search of the OMARA register confirms that this person is not currently registered with OMARA. The statement’s meta-data show that it was created and modified on 30 September 2021. While the Tribunal does not draw adverse inferences from the date of creation shown on the meta-data (which could reflect the date when a physical document was scanned), on the other hand it is unable to find that the document was first produced in 2010 or 2011 based solely on the meta-data. Therefore, it is unable to find based solely on the meta-data that the document stands as a contemporaneous piece of evidence demonstrating that the review applicant had made claims in relation to the disappearance and deaths of his father and [Mr D]. For these reasons, because it was not signed or dated, and in the absence of other evidence that could be used to substantiate its authenticity or its contemporaneity, the Tribunal gives the document little weight when assessing the review applicant’s claims about the disappearance and deaths of his father and [Mr D].

33. The fourth document is a notification of the grant of a Protection visa to the review applicant dated 20 July 2011. While this document evidences that the review applicant was granted a protection visa in 2011, it does not give the reasons for the approval. It is also given little weight.

34. The Tribunal has had regard to the evidence in front of it, including the above evidence and the claims at hearing. It finds it implausible that there would be no evidence of the abduction of the parties’ brother, [Mr D], or indeed of the death of their father – given their statuses as members of the police force. The submission of the review applicant at hearing that it would be hard to gather evidence from the Taliban about the death of [Mr D] completely discounts the role of the state and other authorities in recording major incidents and vital statistics, including in this case the police’s role in recording incidents that happen to members of its force. The complete absence of any documentary evidence of the disappearance of [Mr D] and the death of the parties’ father, in circumstances where the Tribunal considers it reasonable for there to be such evidence, causes it to doubt the claims made by the review applicant. This factor is given substantial weight of an adverse nature.

35. The Tribunal has considered the contents of the application and sponsorship forms. It gives adverse weight to the fact that [Mr D] was listed as not being deceased on the application form dated 7 October 2017. In coming to this finding, the Tribunal rejects the submission of the review applicant’s representative that this was a mistake that occurred because he was instructed that [Mr D] was missing. It has considered that the claimed fate of [Mr D] (abducted and presumed dead) is not contained anywhere else in the application form, including in the following passage which was given in response to a heading titled “[g]ive details of the development of the relationship between the applicant and the sponsor” (and which was also included verbatim in the sponsorship form dated 1 February 2018):

    After the sponsor’s father went missing, and his mother passed away, two of his brothers, [got] wholly and substantially dependent upon him and his wife.

1. The Tribunal has considered that if [Mr D] had been abducted, presumed dead as claimed, these details would have been included somewhere in the application and/or sponsorship forms as an explanation as to why he was unable to assume a custodian or guardian role over his two younger brothers and why they were claimed to be wholly or substantially dependent on the review applicant and the primary visa applicant instead. The fact that these details were not included in the application form causes the Tribunal to doubt that the review applicant’s representative made a mistake by listing [Mr D] as “not deceased”. This aspect is given some adverse weight.

2. The Tribunal’s task in the present matter is to consider and weigh the evidence in front of it before making findings based on that evidence. Having considered and weighed the evidence against itself, it is not satisfied that [Mr D] had died or been abducted at or before the time of application in October 2017. Moreover, there is no evidence to show that he has since died or disappeared.

3. This finding is significant in the context of whether a customary adoption has taken place.

4. 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.[1] It may also 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.[2]

   [1] Civil Code of the Republic of Afghanistan, 5 January 1977 [tr Mohammad Fahim Barmaki]: Art 228, K O’Halloran, The Politics of Adoption: International Perspectives on Law, Policy & Practice, (Springer, 2^nd ed, 2009) 38.

The “Max Planck Manual on Family Law in Afghanistan” (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.[3] The ACC defines the period of custodianship in respect of boys as that period before he turns seven: Art 249 of the ACC.[4]

[3] 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) 104-105.

[4].Civil Code (n 1), Art 249.

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.[5]

[footnotes omitted]

[5] Rastin (n 3) 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.[6] The Tribunal finds that the above information is relevant to the issue of priority of guardianship and it is given weight.

[6] Ibid 104.

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 a hierarchy of entitlement exists where, relevantly, the brother of a child takes responsibility for caring for that child where his father has died or is unable to offer such care during the period of guardianship and where there is no paternal grandfather or male ascendants in the paternal line. The Tribunal accepts that this reference to the “brother” of a child is to the eldest of living brothers. It specifically notes in this regard that the review applicant himself at hearing claimed to be entitled to care for the visa applicants based on the fact that he purported to be the eldest brother at the time of the claimed adoption. Furthermore, in the post-hearing submissions dated30 September 2021, it was stated that “[i]n the Afghan tradition the eldest brother becomes the guardian of his younger underage siblings once the parents pass away”.

The Tribunal accepts that the process of guardianship as laid down in the ACC and construed in accordance with Hanafi law, whereby a member of the child’s family acts 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 have not been placed under the guardianship of their eldest brother, which was [Mr D].

The Tribunal is not therefore satisfied that the claimed 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.

Because the visa applicants are not 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, the Tribunal finds that the visa applicants do not continue, or have not subsequently been found, to be members of the family unit of the primary visa applicant. It bases this finding on its above finding in relation to [Mr D] and specifically the fact that it is not satisfied as to his death.

The visa applicant is therefore unable to satisfy the alternative requirements of cl.309.321(a) or cl.309.321(b), and cl.309.321 is not met.

DECISION

The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF).

David Crawshay
Member

1.12     Member of the family unit

(1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

General rule

(2)A person is a member of the family unit of another person (the family head) if the person is:

(a)     a spouse or de facto partner of the family head; or

(b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

(i)has not turned 18; or

(ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

(iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

(c)      is a dependent child of a person who meets the conditions in (b).

This subregulation has effect subject to the later subregulations of this regulation.

…