2101516 (Migration) - [2021] AATA 3651

2101516 (Migration) [2021] AATA 3651 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2101516
MEMBER:Justine Clarke
DATE:16 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 of Schedule 2 to the Regulations; and
·cl.309.321 of Schedule 2 to the Regulations.

Statement made on 16 September 2021 at 6:37pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of family unit – secondary visa applicant is primary applicant’s cousin and review applicant’s brother – customary adoption of secondary applicant by review applicant and primary applicant after deaths of review applicant and secondary applicant’s parents – residency and dependency – living with primary applicant’s father – visa applicants fully dependent on review applicant – review applicant would continue to support secondary applicant regardless – request for expedition of review after fall of Afghan government – Hazara Shia – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CA(1)(b), 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.04(2), 1.05A(1)(a), 1.12(1)(b), (e), Schedule 2, cls 309.311, 309.321(a)
CASES
Al Naqi v Minister for Immigration [2007] FMCA 874
Huang v MIMA [2007] FMCA 720
Nguyen v MICMSMA [2020] FCCA 2705
Vo v Minister for Home Affairs [2019] FCAFC 108
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 on 6 January 2021 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
On 5 November 2013, [Ms A] applied for the visa based on her spousal relationship with [her sponsor], who is the review applicant in this case. [The visa applicant] in this review, whom it is claimed is the review applicant’s brother, was included as one of the secondary visa applicants in the application.
At the time of application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, who are applicants for the visa, need satisfy the secondary criteria only. The secondary criteria include cl.309.311 and cl.309.321.
Clause 309.311 requires that, at the time of application, the visa 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.
Clause 309.321(a) requires that, at the time of decision, the visa applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 visa.
The expression ‘member of the family unit’ is defined in r.1.12. As the combined visa application was lodged before 19 November 2016, the former version of r.1.12 applies. This definition is more expansive than the current definition.
The review applicant provided the Tribunal with a copy of the primary decision made on 6 January 2021; a decision which the Tribunal notes was made over seven years after the application for the visa had been lodged, despite the review applicant having written to the Department in June 2017 requesting the application be considered ‘under compassionate and compelling circumstances’ given his mental and physical health issues (corroborating evidence provided) and the deteriorating security situation in Kabul, Afghanistan.
The decision concerned [the visa applicant]] only. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 of Schedule 2 to the Regulations. The delegate assessed the application pursuant to the provisions in r.1.12(1)(e). The delegate appears to have accepted that, as the visa applicant is the claimed brother of the sponsor (the review applicant in this review), the visa applicant would meet the definition of ‘relative’ (in r.1.03).
The delegate stated that it was claimed that, at the time of application, the visa applicant did not have a spouse or de facto partner. However, the delegate made no findings in this respect. The delegate also stated that, at the time of the refusal decision, it was claimed that the visa applicant was residing with [Ms A] and that he was dependent on her and that he had been dependent on her for a substantial period prior to the lodgement of the application for the visa. The delegate made no findings with respect to the claimed residency. Rather, the delegate focused on the issue of the claimed dependency.
The delegate found that [Ms A] was unemployed and fully dependent on her sponsor (the review applicant). The delegate acknowledged that ‘[i]t is well established in case law and PAM that “financial support may be attributed to the couple even though only one may be in receipt of income”’. However, the delegate also had regard to the comments made by the Federal Magistrates Court in Al Naqi v Minister for Immigration,[1] including the statement, ‘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’.[2]
[1] [2007] FMCA 874.
[2] Ibid at [16].
The delegate also noted that PAM3 states that
as a general rule if the sponsor would not continue to support the secondary applicants in circumstances where the sponsor was no longer in a relationship with the family head then it should be considered that the secondary applicants are dependent upon the family head. However, if the sponsor would continue to support the secondary applicants regardless of the sponsor’s relationship with the family head, then it should be considered that the secondary applicants are dependent on the sponsor (and not the family head).
The delegate found that the financial support provided to the visa applicant was as a result of the sponsor’s familial relationship with the visa applicant—not any relationship or obligation upon [Ms A]. The delegate found that ‘the sponsor’s support to his sibling is dependent upon his relationship with the primary applicant [that is, [Ms A]] for ease of distribution and that he would continue to support him in the same way if the primary applicant was not available to distribute the support’.
In cumulative consideration of the above information, the delegate concluded that they were not satisfied that the visa applicant was a member of the family unit of [Ms A]. The delegate found that the visa applicant did not meet cl.309.311 of Schedule 2 to the Regulations. In the circumstances, the delegate did not consider it necessary to make findings about the additional requirements of subdivision 309.3, including time of decision criteria.
On 10 February 2021, the review applicant applied for the review of the primary decision. The review applicant was represented in relation to the review by his registered migration agent. The Tribunal notes that this particular agent has represented the parties since the application for the visa was lodged on 5 November 2013.
Following the fall of Kabul, Afghanistan to Taliban forces on 15 August 2021, on 25 August 2021, the review applicant, by way of his representative, requested that the matter be expedited, for ‘compassionate and compelling circumstances’. The review applicant submitted a signed statement made by him on 25 August 2021 where, amongst other things, he stated:
We are of Hazara ethnicity and Shia religion and the Taliban have had a long history of large scale killings of Hazara’s. Due to the huge threat to his life he is currently trying to flee Afghanistan. He is currently outside the airport trying to flee Afghanistan but it is very unlikely he will be able to flee. Once the flights stop at the end of August he will be stuck in Afghanistan.
With the Taliban in control again it is highly likely that they will again start killing Hazara Shia’s in the way they did when they ruled Afghanistan previously.
On 30 August 2021, the Tribunal wrote to the review applicant, by way of the representative, to inform that the matter would be given priority.
On 1 September 2021, the matter was constituted to the Member presiding. Given the highly volatile situation in Afghanistan, on 2 September 2021 the Member directed an officer of the Tribunal to contact the representative to see whether the review applicant would consent to waiving the usual 14-day notice period for a hearing. That same day, the representative wrote to the Tribunal stating that they agreed to waive the usual notice period for a hearing.
Due to the COVID-19 pandemic and ‘lockdown’ restrictions in Melbourne, the Tribunal did not hold an in-person hearing. On 3 September 2021, the Tribunal wrote to the review applicant inviting him to a telephone hearing on 15 September 2021 in order to give oral evidence and present arguments. Subsequently, the review applicant responded to the invitation, stating that he, his wife [Ms A], and the visa applicant in Afghanistan would be available to provide oral evidence at the hearing. Later, written submissions and further evidence was submitted.
On 15 September 2021, prior to the hearing, the Tribunal contacted the representative in order to inform him that the Tribunal considered that a hearing was no longer required. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour on the basis of the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, at the time of application on 5 November 2013, the visa applicant was a member of the family unit of [Ms A]. The information before the Tribunal is that [Ms A] has been granted a Subclass 309/Subclass 100 visa. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.309.321 as well.
The former version of r.1.12 provides:
(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
(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.
As the delegate noted, subregulations (2), (2A), (6) and (7) are not applicable in an application for a Subclass 309 visa.
The Tribunal notes that a number of the terms used in r.1.12 are defined in the Act or Regulations.
In this case, [Ms A]—not the review applicant—is the so-called ‘family head’. This is because cl.309.311 provides:
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.
Which paragraph in r.1.12(1) applies?
It is claimed that the review applicant and the visa applicant are brothers, and that the review applicant is older than the visa applicant. It is also claimed that [Ms A] is the cousin of both the review applicant and the visa applicant. The Tribunal accepts the review applicant’s declaratory evidence about these matters.[3]
[3] For example, see his statement of 25 October 2013 which is on the Department’s file.
The delegate appears to have concluded that the only applicable paragraph in r.1.12(1) for full assessment is r.1.12(1)(e). However, since the time of the application for the visa on 5 November 2013, the representative has submitted, on behalf of his clients, that the visa applicant is a dependent child of the review applicant by way of customary adoption. That is, that the applicable provision is r.1.12(1)(b) because the visa applicant is a dependent child of the review applicant (who is the spouse of the ‘family head’).[4] Strangely, the delegate did not note or address this claim in any way in the refusal decision of January 2021.
[4] For example, see the written submissions of 29 October 2013 which are on the Department’s file.
In this review, the written submissions of 8 September 2021 reiterated the claim that r.1.12(1)(b) is the relevant provision.
Having reviewed and considered all the information and evidence before it, the Tribunal considers it appropriate to assess whether the visa applicant meets r.1.12(1)(b).
Assessment of r.1.12(1)(b)
Regulation 1.12(1)(b) provides that a person is a member of the family unit of another person (the family head) if the person is a dependent child of the family head or of a spouse or de facto partner of the family head.
‘Dependent child’ is defined in r.1.03. At the time of application, the provision was as follows.
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.
At the time of application, was the visa applicant engaged to be married or did he have a spouse or de facto partner? Now?
As a person is expressly excluded from the definition of a ‘dependent child’ if they are engaged to be married or have a spouse or de facto partner, it is helpful to assess this aspect first.
In this review, it was submitted, in the written submissions of 8 September 2021, that the visa applicant is unmarried. In his signed statement of 17 March 2021, the review applicant stated, ‘[The visa applicant] is not married or engaged and is single’.
There is no evidence before the Tribunal that the visa applicant is engaged to be married or that he has ever been, or that he has or ever has had a spouse or de facto partner.
In the circumstances, the Tribunal accepts the submission and the review applicant’s evidence. The Tribunal finds that, both at the time of application on 5 November 2013 and at the time of this decision, the visa applicant was not and is not engaged to be married and that he did not, and does not, have a spouse or de facto partner. Accordingly, the visa applicant is not excluded from meeting r.1.12(1)(b) on this basis.
At the time of application, was the visa applicant a dependent child of [Ms A] (the family head) or of the review applicant (the spouse of the family head)? Now?
Child
The law
The term ‘child of a person’ is defined in s.5CA of the Act. Section 5CA(1)(b) expressly provides that a child of a person may be an adopted child of the person within the meaning of the Act.
The term ‘adoption’ is defined in r.1.04. For present purposes, it is sufficient to note that the definition, as it was at the time of application, relevantly provided, in paragraph (2), that arrangements, other than formal adoption arrangements, that have been entered into outside Australia will be 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 … :
(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.
The evidence
In both her Forms 47SP and Form 80 for the visa which are on the Department’s file, [Ms A] declared that the visa applicant was her ‘son by custom’. In her signed statement of 10 October 2013, she explained:
My husband’s father was killed many years ago, and due to my husband being the eldest male relative, he became responsible for his young siblings. My husband and I have always acted as their parents. They are like our children and we have raised them as our own children.
Similarly, in the review applicant’s signed statement of 25 October 2013, he relevantly stated:
I declared my relationship to my wife and children in all stages of my protection visa application process. I also declared that my parents were dead in these applications and that my wife and I had become the parents of my siblings under what it is normal in our culture. I also lodged humanitarian applications for my wife and children.
…
In our culture when the father of a child dies it becomes the responsibility of another male member of the family of the father to become the father of the child/children. My father was killed by the Taliban many years ago. Normally it becomes the responsibility of the father’s brother to care for the children. However, my father only had one brother who had died before my father died so it then became my responsibility as the eldest son of my father, to become the father of my siblings. I have raised my siblings like my own children and since I married my wife she has been like their mother as my mother had died not too long after I married my wife.
…
… [My wife] is a great mother to both our children and my siblings who she cares for as if they were her own children.
The Department’s file contains copies of the death certificates for both [Mr B] (the claimed father of both the review applicant and the visa applicant)[5] and [Ms C] (the claimed mother of both the review applicant and the visa applicant). The certificates evidence that [Mr B] died in 2003 and that [Ms C] died in 2006, although the deaths were not registered until September and October 2013 respectively.
[5] The Tribunal notes that there is some evidence in support of the claims. For example, the Tribunal notes that the visa applicant’s Tazkira states that his father is ‘[Mr B]’; that the review applicant’s marriage certificate to [Ms A] states that the review applicant’s father is ‘[Mr B]’; and the Tazkiras for the review applicant’s two biological sons state that ‘[Mr B]’ is the grandfather of each child. All of these documents are on the Department’s file.
In this review, the review applicant provided the Tribunal with a copy of his signed statement made on 17 March 2021. He relevantly stated:
[The visa applicant] is my biological brother but my father and mother are deceased. My father went missing during the period of the Taliban (around 1997/1998) and though his body was not found we know he is dead. My mother also died many years ago. In our culture if a father dies then it is the responsibility of a male relative to raise the child as his own and customarily adopt the child. Normally the brother of the father adopts the child but my father only had one brother and he was dead already. In this case it become the responsibility of another male relative to raise the child and this responsibility became mine as the oldest adult male in my family. I have raised and cared for [the visa applicant] my whole life as my own child.

In the written submissions of 8 September 2021, it was further submitted that, since the applicants’ father had gone missing in 1997/98, he had ‘never been heard of since’.
It was submitted, in both the written submissions of 29 October 2013 and 8 September 2021, that, following the death of the father of the review applicant and the visa applicant, the review applicant adopted the visa applicant pursuant to Afghan custom. The submissions of 8 September 2021 explained:
Under Afghan custom, upon the death of a child’s father, protective responsibilities in relation to the child are taken on by a male member of the father’s family. This process is so well entrenched in Afghan society that it can be seen to have taken on the status of customary law. Normally it is the brother of the father who takes on this role, but in the absence of a brother another elder male relative such as elder sibling can take on this role and the review applicant has taken on this role.[6]
[6] The submissions of 29 October 2013 were to similar effect.
Both sets of submissions referred to and extracted relevant passages from a letter from Professor William Maley (then Professor and Director of the Asia-Pacific College of Diplomacy at the Australian National University whose research speciality was said to be Afghanistan), dated 3 June 2004, detailing customary practices of adoption in Afghanistan, as relevant ‘country information’. In particular, the Tribunal notes the following passages which were highlighted for attention.
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.
Both sets of submissions also referred to another piece of country information which had been submitted to the Tribunal (then known as the Migration Review Tribunal) in case reference number 1007745 which also supports the claim as to the position of Afghan custom with respect to adoption, and which had been accepted by the Tribunal in that case. The Tribunal in that case wrote:
Information about adoption in Afghanistan
The Tribunal has accessed the following information in relation to the adoption practices prevalent in Afghanistan among the Hazara ethnic group:
·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). [Emphasis in the submissions].
As noted earlier, it is unclear to the Tribunal why the delegate did not note or engage with this claim and evidence at all but rather proceeded to consider r.1.12(1)(e).
Assessment
The Tribunal is not troubled by the fact that, earlier, the review applicant declared that his father was dead and that, in this review, he has stated that his father went missing in around 1997/1998, during the Taliban’s first reign in Afghanistan, and that his body has never been found. The Tribunal is not troubled because the Tribunal accepts the review applicant’s evidence that ‘we know he is dead’. The Tribunal views the review applicant’s statements in this review as a mere clarification.
In the absence of evidence to the contrary, the Tribunal accepts that [Mr B] and [Ms C] are the parents of both the review applicant and the visa applicant and that they died on the dates stated in the death certificates.
Having considered all the evidence before it, the Tribunal accepts the review applicant’s and [Ms A]’s evidence that they have regarded and treated the visa applicant as their own child.
With respect to the requirement in paragraph (2)(a) of the definition of ‘adoption’ in r.1.04, the Tribunal finds that the arrangements that were made in the present case—as detailed above—were made in accordance with the usual practice, or recognised custom, in Afghan culture. The Tribunal is satisfied that, both at the time of application on 5 November 2013 and at the time of this decision, the requirement in paragraph r.1.04(2)(a) was and is met.
With respect to the requirement in paragraph (2)(b), having had regard to the nature and duration of the claimed customary adoption arrangements in this case, the Tribunal finds that the child-parent relationship between the visa applicant (as adoptee) and the review applicant and [Ms A] (as adopters) is significantly closer than any such relationship between the visa applicant and any other person or persons. The Tribunal is satisfied that, both at the time of application on 5 November 2013 and at the time of this decision, the requirement in r.1.04(2)(b) was and is met.
With respect to the requirement in paragraph (2)(c)(i), the Tribunal, as presently constituted, is mindful of its decision in AAT case reference number 1915686, made on 11 December 2020, where it accepted the submission that legal or formal adoption is not available in Afghanistan on the basis of email correspondence from a named employee of UNICEF in The Netherlands to this effect which had been submitted in that case. Similarly, in the present case, the Tribunal finds that formal adoption was either not available under the law of Afghanistan (paragraph (i)(A)) or, to recall what was said by Professor Maley, was not reasonably practicable (paragraph (i)(B)). The Tribunal is satisfied that, both at the time of application on 5 November 2013 and at the time of this decision, the requirement in r.1.04(2)(c)(i) was and is met.
The Tribunal has no cause to believe that the claimed customary adoption arrangements have been contrived to circumvent Australian migration requirements. To the contrary, the Tribunal notes that the review applicant has long and consistently claimed that he has become the parent of the visa applicant pursuant to Afghan custom. The Tribunal is satisfied that, both at the time of application on 5 November 2013 and at the time of this decision, the requirement in r.1.04(2)(c)(ii) was and is met.
Accordingly, the Tribunal finds that, both at the time of application on 5 November 2013 and at the time of this decision, the visa applicant was the child of the review applicant and [Ms A] by way of customary adoption arrangements.
Dependent child
The law
It will be recalled that ‘dependent child’ is defined in r.1.03. See the extract above.
The evidence
The evidence before the Tribunal is that the visa applicant’s date of birth is a specific date in the second quarter of [Year].
Assessment of time of application criterion
The Tribunal is satisfied that, at the time of application on 5 November 2013, the visa applicant was [age] years of age. As the visa applicant was under 18 years of age, he met the requirement in paragraph (a) of the definition of ‘dependent child’. Accordingly, the Tribunal is satisfied that, at the time of application, the visa applicant was a dependent child of the review applicant and thus r.1.12(1)(b) was met.
Assessment of time of decision criterion
As the evidence before the Tribunal is that, at the time of this decision, the visa applicant has turned 18—indeed, that he is [age] years of age—it is necessary for the Tribunal to assess whether, at the time of this decision, the visa applicant meets the requirements in paragraph (b) of the definition of ‘dependent child’.
It appears to the Tribunal that the review applicant is claiming that the visa applicant meets the requirement in paragraph (b)(i) of the definition of ‘dependent child’. Accordingly, it is necessary for the Tribunal to assess whether, at the time of this decision, the visa applicant is ‘dependent’ on the review applicant for the purpose of the definition of ‘dependent child’.
Dependent
The law
Regulation 1.03 provides that ‘dependent’ has the meaning given by r.1.05A.
The term ‘dependent’ is defined in r.1.05A. At the time of application and at the time of this decision, this relevantly provides:
(1) … 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[.]
The Federal Circuit Court of Australia considered the term ‘financial support’ in r.1.05A(1)(a) in Nguyen v MICMSMA.[7] The Court confirmed that provision of food, clothing and shelter without payment can be treated as ‘financial support’. The Court explained, at [42]:
Paragraph (a) of reg.1.05A(1) refers to the first person’s basic needs for food, clothing and shelter. Such needs can only be met by the acquisition of food, clothing and shelter; and such acquisitions can only be obtained through transactions in which money is exchanged for the food, clothing and shelter. In that context, ‘financial support’ simply refers to doing that which relieves the first person from having to pay all or part of the price for the food, clothing and shelter that the first person requires to meet his or her basic needs for these items. That may involve the transfer of money from the person on whom the first person relies to the first person, but in most cases it would not. It will usually consist of the direct provision of food, clothing and shelter to the first person. That no money may be exchanged for the provision of food, clothing and shelter to the first person however, would not deny their provision to the first person the character of ‘financial support’; and this is because the first person would be relieved of the need to have to pay for these items. That is, providing economic goods without payment is financial support.
[7] [2020] FCCA 2705.
The Full Court of the Federal Court of Australia considered the application of r.1.05A in Vo v Minister for Home Affairs.[8] The Court remarked:
The requirement that the person be substantially reliant on the other person should be construed, in the context of para (a)(ii) and the subject matter of reg 1.05A in dealing with dependence, as requiring a meaningful degree of financial reliance on a person to an extent that the person might properly be described as being dependent on that person (as distinct from simply receiving some assistance from that person) for basic needs. There must be a degree of confidence or trust in the support and it must be sufficient that without the extent of support provided by the other person the dependent person would be in a position where their overall basic need for food, clothing and shelter though aided by others would not be met.[9]
[8] [2019] FCAFC 108.
[9] At [17].
The Court also made the following observation:
the definition stated in reg 1.05A has both a temporal and qualitative element. The temporal element is that period being ‘a substantial period immediately before’ the time ‘when it is necessary to establish whether the first person is dependent on the other person’. The qualitative element is the degree of dependency or reliance. Therefore, in order to satisfy the clause, the person claiming to be a dependent must show that during the relevant period they were wholly or substantially reliant on the first person. Further, it must be shown that at the time when it is necessary to establish dependency, the reliance on the first person was greater than the reliance on any other person.[10]
[10] At [20].
There is no definition in the Regulations of what constitutes a ‘substantial period’. However, in the context in which ‘substantial’ is used in r.1.05A, it has been held that it should be understood to mean a lengthy period.[11]
[11] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in r.1.03. His Honour stated, at [44], that a ‘reasonable period’—which was the term used in that context—need not be lengthy.
With respect to the qualitative element within r.1.05A(1)(a)(ii), the Tribunal notes the following remarks made by the Court in Vo.
Substantial reliance may be placed upon a number of people each of whom may provide some financial support in order to meet basic needs for food, clothing and shelter. By the terms of para (a)(ii), reg 1.05A directs attention to identifying the person who provides the greatest amount of such support. It is only that person who is a person upon whom a person may be dependent for the purposes of the Migration Regulations (where the regulation uses the term ‘dependent’).[12]
The evidence
[12] At [18].
When the matter was before the Department, the review applicant provided a signed statement made on 4 July 2017 where he relevantly stated:
I have been fully supporting my family financially since I have been in Australia. I send money through a money transfer shop in Australia. I have attached evidence of the funds I have sent. The shop only keeps records of money transfers for the last year so I am not able to provide evidence of the money I have sent for more than a year.
…
I pay for all the food, clothing and shelter for my wife and children and my brother [the visa applicant].
[The visa applicant] is studying full time [and] I pay for all his expenses and he has never worked and relies totally on me and my wife for food, clothing and shelter.
In this review, in his signed statement of 17 March 2021, the review applicant stated:
[The visa applicant] has never worked in his life and I have always financially supported him fully. He was attending high school in Kabul up until the end of 2018 but the security situation in Kabul got too dangerous for him to keep attending so he did not sit his final exams. He has been studying English in an English language centre 5 days a week since he finished high school and he also goes to the gymnasium 5 days a week.
[The visa applicant] does not work as he is studying and further the security situation is so dangerous in Kabul that I don’t want him to work as he may be killed if he works. I would rather pay for his expenses than have him work and be killed working. He is also too scared to work due to the dangerous security situation in Kabul. …
I normally send on average around $500 a month to support [the visa applicant] to pay for his food, clothing, accommodation and living expenses. Without this money he would not be able to survive.
Previously, before my wife and children were granted their visa and came to Australia, [the visa applicant] had always lived with my wife and children. They were living [in] my wife’s father’s home in Kabul. After my wife and children came to Australia [the visa applicant] remains living in this home with my wife’s father.
Were [the visa applicant] to work he would likely earn very little money and place his life at great risk. Over 52% of the Afghan population earn wages below $30 US a month and even the minimum wage for an Afghan Government Employee is only $90 a month. I am sending far more than the minimum wage in Afghanistan and this covers all his needs and expenses. If he were to work he would likely only get another $30 a month more and he would place his life at great risk. The situation in Kabul is extremely dangerous with bombings and attacks occurring regularly and on top of this there is a huge amount of criminal activity. Further, [the visa applicant] is of Hazara ethnicity which places him even further risk of exploitation, attacks and danger. Given this situation I send money to [the visa applicant] so he does not need to work as if he works his life will be placed in extreme danger for very little reward. I am scared that he will be killed if he works so I financially support him and this is why he has never worked.
…
[The visa applicant] is and always has been totally dependent on me for food, clothing and shelter and I have always paid all his expenses.
In this review, it was submitted, in the written submissions of 8 September 2021, that
the visa applicant’s situation must be seen in the light of the average wage in Afghanistan and what he would earn if he were working in Afghanistan. The visa applicant has not undertaken tertiary studies and has no qualifications and has not even completed high school. Given the country information below [extracts provided from a report by the United States Department of State entitled Afghanistan 2018 Human Rights Report] that shows that 52% of the Afghan population earned wages below $30 a month and that the minimum wage for Afghan government employees was $90 a month.
Had the visa applicant’s been working in Afghanistan (which he is not), he would have likely around $30 a month and at best $90 a month ($360 to $1080 per annum). The visa applicant would [be] placing his life in great danger for very little financial reward.
…
Given the dire security and economic situation for Hazara’s in Afghanistan, in which unemployment is prevalent, the likelihood of the visa applicant being able to secure full time employment is very small and if he did it would be for limited financial reward and a great risk to his life.
It was submitted that the visa applicant is ‘totally reliant on the review applicant for financial support to meet his needs for food, clothing and shelter’ and that he had been so reliant ‘for virtually his entire life’.
A number of documents were submitted in support of these claims.
Assessment
The evidence before the Tribunal is that, at various times during the processing of the application for the visa, the visa applicant has been studying. For example, the Tribunal notes that the Department’s file contains a copy of written confirmation, dated 18 June 2017, that, at that time, the visa applicant was a student in the [Number] class year of [a] High School. In this review, the review applicant submitted a ‘to whom it may concern’ letter from a named ‘ESL’ (English as a second language) Instructor at [Institution], Kabul dated 23 March 2021 stating that the visa applicant had been a student for the previous six months and that he was ranked among the top three students in the class. A receipt for the visa applicant’s tuition fees at the [Institution], dated 30 November 2020, was also submitted to the Tribunal.
A signed letter from a named trainer at [a] Gym in Kabul, dated 6 March 2021, was also submitted to the Tribunal. The trainer stated that he had known the visa applicant for two years as the visa applicant attends the gym regularly to ‘work out’.

Having considered the evidence before it, the Tribunal accepts the review applicant’s evidence that, at the time of this decision, the visa applicant is not working and that he has never worked.
The Tribunal also accepts the review applicant’s evidence and the claims made in the submissions about why it is that the visa applicant has not been working. In this context, the Tribunal notes statements made by the Department of Foreign Affairs and Trade (DFAT) in its most recent country information report for Afghanistan—which is some years old at the time of this decision—that:
No part of the country is entirely free from conflict-related violence, with resulting negative effects on economic development, health care and education services.[13]
…
While reliable statistics are unavailable, unemployment and underemployment are widespread in Kabul, as they are elsewhere in Afghanistan.[14]
…
Traditional extended family and tribal community structures are the main protection and coping mechanism in Afghan society. Afghans rely on these networks for safety, shelter and economic survival.[15]
[13] DFAT, DFAT Country Information Report Afghanistan, 27 June 2019 [2.5].
[14] Ibid [2.14].
[15] Ibid [5.31].
The Tribunal notes that the review applicant has submitted evidence of many transfers of money from him to the visa applicant over the years. For example, the Tribunal notes that the Department’s file contains four receipts of such transfers in 2013; one in 2016; two in 2017 as well as a ‘to whom it may concern’ letter, signed by a named person on specific letterhead on 17 June 2017, that states that the review applicant had been sending a monthly average of AUD$500 to the visa applicant for the period from May 2016 to October 2016. In this review, the review applicant submitted four receipts for transfers from the review applicant to the visa applicant in 2021 as well as a ‘to whom it may concern’ letter from a named money exchange, dated ‘8/3/21’ stating that, since January 2019, the review applicant had sent a monthly average of $500 to the visa applicant. The Department’s file also contains one receipt for money sent to [Ms A] in 2013 and two receipts for transfers to [Mr D] ([Ms A]’s father, as stated on her marriage certificate and other documents) in 2016 and 2017.
While the review applicant’s evidence is that the visa applicant lives in [Ms A]’s father’s home and has done so for a number of years, the Tribunal considers that there has been no suggestion that [Mr D] is providing shelter to the visa applicant without payment. Indeed, the evidence is that, on at least two occasions as noted above, the review applicant remitted money to [Mr D]. At the time of this decision, it is unclear whether the review applicant continues to send money to [Ms A]’s father—presumably to assist with the cost of the provision of shelter and food to the visa applicant—or whether, perhaps, the visa applicant pays some of the money that he receives from the review applicant to [Ms A]’s father to assist with these costs. While the evidence is unclear, the Tribunal does not consider it to be a reason or part of the reason to affirm the decision under review. This is because the Tribunal accepts the review applicant’s evidence, corroborated by the financial receipts spanning a number of years, that he has ‘always’ provided all of the financial support so that the visa applicant’s basic needs—including for shelter—are met.
Having considered all the evidence that is before it, the Tribunal finds that, for a substantial period before the date of this decision and until the date of this decision, the visa applicant was and continues to be substantially reliant on the review applicant to provide for his basic needs for food, clothing and shelter. The Tribunal finds that the temporal element within r.1.05A(1)(a)(i) is met.
In the Tribunal’s view, there is no suggestion in the evidence in this case that r.1.05A(1)(a)(ii) is not met. The Tribunal is mindful that the review applicant has been earning income in Australia and that if [Mr D] is working (something which the Tribunal is unaware), he would be earning wages in Afghanistan which, as evidenced earlier, are substantially lower than those in Western countries such as Australia. In the circumstances, the Tribunal is satisfied that the visa applicant’s reliance on the review applicant for financial support is greater than his reliance on any other source of support. The Tribunal finds that the qualitative element within r.1.05A(1)(a)(ii) is met.
Accordingly, the Tribunal is satisfied that, at the time of this decision, the visa applicant meets all the requirements for a ‘dependent child’ of the review applicant (being the spouse of the family head) for the purpose of r.1.03.
CONCLUSION
The Tribunal finds that, at the time of application on 5 November 2013, r.1.12(1)(b) was met and, accordingly, the Tribunal is satisfied that cl.309.311 is met.
Similarly, the Tribunal finds that, at the time of this decision, r.1.12(1)(b) is met and accordingly, the Tribunal is satisfied that cl.309.321(a) is met, and thus cl.309.321 is met.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
Given the grave situation for Hazaras in Kabul, Afghanistan, any efforts the Department of Home Affairs may make in expediting this case would be appreciated.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 of Schedule 2 to the Regulations; and
·cl.309.321 of Schedule 2 to the Regulations.
Justine Clarke
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.
…