2433633 (Migration) - [2024] ARTA 916

2433633 (MIGRATION) [2024] ARTA 916 (1 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2433633

Tribunal:Senior Member J Marquard
Place:Sydney
Date: 1 November 2024
Decision:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.211 of Schedule 2 to the Regulations; and
·cl 101.221 of Schedule 2 to the Regulations.

Statement made on 01 November 2024 at 2:53pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant living in third country as refugee – claim to be child of review applicant and wife retracted – child of review applicant’s brother and sister-in-law – DNA test shows parties not parents/child but no test done for uncle/niece relationship – customary adoption before birth – detailed and convincing evidence, documents and spontaneous oral evidence from sister-in-law/biological mother – relationship significantly closer than to any other person(s) – residence and emotional, practical and financial support – deaths of two older children, leaving visa applicant as only child for a time – child living with biological parents temporarily – country information – no formal adoption procedures available and customary adoption between close relatives common – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04(1)(c), (2), Schedule 2, cls 101.211(1)(c), 101.221
CASES
Hussain v MIAC [2010] FMCA 729
Hussain v MIAC (No 2) [2010] FMCA 730
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The review applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2024 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant lodged the application for review with the the former Administrative Appeals Tribunal (the AAT). On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding commenced in the AAT but was not finalised before 14 October 2024, such as this one, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or in relation to, the proceeding before 14 October 2024, that was validly done according to the applicable law at the time is taken to be valid under, or to have been done according to the law as it is now, for the purposes of proceeding after 14 October 2024. Anything done in, or in relation to the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal: item 24 of Part 5 of Schedule 2 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The Tribunal has given the matter priority as it relates to a child.
BACKGROUND TO THE REVIEW AND RELEVANT LAW
[The visa applicant] is a [Age]-year-old girl who was born in Afghanistan on [Date]. She is currently residing in [Country 1] as a refugee where she has been since 2019.
The visa applicant applied for a Child (Migrant) (Class AH) visa on 2 February 2024. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).
The visa applicant applied specifically for the Subclass 101 (Child) visa. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211 which provides that, at the time of application, the visa applicant must be a child (other than an adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who, at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).
[The review applicant] is the child’s sponsor. In the application for this visa, he claimed that he is the visa applicant’s father and that [Mrs A], his wife, is her mother. The review applicant arrived in Australia [in] October 1999 by boat and is an Australian citizen. [Mrs A] first arrived in Australia about six years ago and is now an Australian permanent resident. The couple have two other children, [B], who was born in [Year] in [Country 2], and a son, [Master C], who was born in Australia in [Year].
The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that cl 101.211 was not met as the delegate was not satisfied that the visa applicant was a ‘child’ as defined in the legislation.
This is a review of that decision by the Tribunal.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has taken into consideration the application and supporting documents provided to the Department and new evidence before this Tribunal. The Tribunal has also considered independent country information about Afghanistan.
[The review applicant] appeared before the Tribunal on 22 October 2024 to give evidence and present arguments, along with his wife, [Ms A]. The visa applicant spoke to the Tribunal on the telephone from [Country 1] as did the biological mother of the visa applicant, [Ms D]. The review applicant was represented by Mrs Marion Le, who appeared at the hearing via video. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The evidence is referred to where relevant in the findings below.
FINDINGS AND REASONS
For the following reasons, the Tribunal finds that the matter should be remitted for reconsideration.
Who are the visa applicant’s biological parents?
In order to meet the criteria for a Child (Migrant) (Class AH) visa, at the time of application, the visa applicant must be a dependent child (other than an adopted child) or specific kind of step‑child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who, at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c) of Schedule 2 to the Regulations.
In the application for this visa made to the Department it was claimed that the biological parents of the visa applicant are [the review applicant] and [Ms A] ([the review applicant’s] partner).
The evidence provided to support this claim was:
·Form 40CH – ‘Sponsorship for a child to migrate to Australia’. At question 14 the sponsor stated that the visa applicant is his natural child.
·Question 28 of the application. It was stated that the child’s father is [the review applicant] and the mother is [Ms A].
·Copy of the taskera for the child, ‘[the visa applicant]’, issued in 2015 showing the child’s father’s name as ‘[the review applicant], grandfather ‘[Mr E]’.
·Afghan passport for the visa applicant showing date of birth as [Date] (issued [2022]).
·‘UNHCR Consideration Letter’ for the applicant. States that she was born in Parwan, Afghanistan, and that she entered [Country 1] [in] November 2019 and made an application for refugee status which was under consideration.
·Letter from the NDIS Support Coordinator, [Provider], to the Department advocating for the ‘facilitation of [the visa applicant]’, aged [Age], who was the daughter of [Ms A] and [the review applicant]. The author states that [Provider] manage the couple’s son’s NDIS scheme as he is disabled. It was stated that [Ms A] is suffering from depression partly caused by separation from her daughter.
·Numerous copies of photographs of the family, many of which include the child [the visa applicant]. One of the photographs is inscribed with a note ‘[Master F] was in Afghanistan at school’. Another was titled ‘[Miss G] had died’. Photographs included those of a little girl with an older woman, titled ‘[the visa applicant]’, and ‘[Ms A] and [the visa applicant]’. Another photograph was titled ‘Afghanistan [Ms A] and [the visa applicant] (1 yr)’ in [Year]. A further photograph was of the family group titled ‘[Country 1]’. A further photograph was titled ‘[Ms A] and her three children in [Country 1]’.
In the application form, it was stated that the visa applicant lived in Afghanistan until January 2015 and then went with her father and the rest of the family to [Country 2] for work. They were in [Country 2] until August 2018 when the visa applicant returned to Afghanistan when other family members moved to Australia.
While it was initially claimed that the visa applicant is the biological child of [the review applicant] and [Ms A], this claim was later retracted, and [the review applicant] claimed instead that the visa applicant is the biological child of his brother and sister-in-law, but that before her birth it was decided that she would be given to [the review applicant] and [Ms A] to raise, and they adopted her under custom.
This new evidence followed DNA tests by independent clinics conducted in order to establish whether the visa applicant was the biological child of [the review applicant] and [Ms A]. Two tests both concluded that she was not their biological child. The second DNA testing was completed by an accredited DNA facility on 17 April 2024 and concluded that the claimed parents are not the visa applicant’s biological parents.
Immediately after the second DNA test, the applicant’s representative continued to claim that [the review applicant] and [Ms A] were the biological parents. Submissions from the representative dated 30 May 2023 stated:
As you can probably imagine, my clients are completely devastated by this further confirmation of the earlier DNA tests and cannot accept that the girl they have raised from a baby is not their child. Her mother is adamant that she gave birth to a baby girl in the stated hospital at the time and that [the visa applicant] is the baby she returned home with after giving birth. She does accept – reluctantly – that it is possible the baby was mixed up with another as the hospitals are not as regimented as they are here. However, emotionally and practically, [the visa applicant] is their daughter as this couple have cared for her since birth.
On 24 June 2024, an email was sent to the review applicant by the Department requesting comments or a response on information before the Department. This was information in a partner visa application lodged by the review applicant and his wife, in which [Ms A] had undertaken a health examination during the application process at a time when she had claimed that she was pregnant with the visa applicant.
According to the decision of the Department, on 29 July 2024, Mrs Marion Le provided information by telephone to the Department. She acknowledged the visa applicant was not the child of the sponsor and instead claimed that the visa applicant is the niece of the sponsor. She claimed that the visa applicant’s father is the brother of the sponsor, and was given to the sponsor and sponsor’s partner at birth. She requested that DNA testing be undertaken to confirm the uncle/niece relationship. At the Tribunal hearing, Mrs Le confirmed that this telephone discussion took place.
On 14 August 2024, after the decision of the Department to refuse the visa, the representative said that:
[The review applicant and Ms A] now advise the Department that they are not the biological parents of [the visa applicant] though they consider her to be their daughter by blood and heritage since she was given into their care by her parents even prior to her birth. Her biological father is the full biological brother of [the review applicant]. Before she was born her parents decided to give her to [the review applicant] and his wife to raise as their own child because of the poor physical health of [Ms A] and the perception that she would be unable to give birth again. [Ms A] and [the review applicant] and his brother are all first cousins – their mothers were sisters.
The Tribunal has had significant concerns about why [the review applicant] and [Ms A] initially claimed that they were [the visa applicant]’s biological parents and then changed this evidence. When evidence that is not credible is provided on one occasion, it causes decision-makers to question whether all the evidence lacks credibility.
However, after considering the evidence in totality, the Tribunal accepts that [the review applicant] and [Ms A] adopted the child from [the review applicant]’s brother, which is the newer evidence given to the Tribunal. The Tribunal notes the explanation from [the review applicant] and [Ms A] that at the time of application they thought it may be easier to say that they were the biological parents of the child, given that [the visa applicant] had been part of their family since birth and was in effect their child. [The review applicant] and [Ms A] apologised to the Tribunal and confirmed that they were giving evidence under oath to the Tribunal and that what they had told the Tribunal was true. The Tribunal accepts that [the review applicant] and [Ms A] may have suggested that [the visa applicant] was their biological child because they thought it may make the process simpler knowing that, in effect, she was their child, and while this does not justify the provision of incorrect information, it does provide some explanation for it. Given the volume of evidence discussed below, and their persuasive evidence to the Tribunal, the Tribunal accepts their evidence that the visa applicant is the child of [the review applicant]’s brother.
It is also not entirely clear that in fact they always claimed to the Department that they were the biological parents. Clearly the representative thought that at the time they were claiming that they were the biological parents as she made submissions to this effect. However, [the review applicant] told the Tribunal that interpretation may have impacted the presentation of his evidence. His representative, Mrs Le, now says that when she reviewed the evidence, it was notable that he referred to ‘child of blood’ rather than ’biological child’ on a number of occasions. She also told the Tribunal that when she asked [the review applicant] why he was surprised at the outcome of the DNA testing, he said that it was because the child was his ‘blood’. This may have indicated that they thought that the DNA tests would demonstrate the uncle/niece relationship even though it demonstrated they were not biological parents. However, the tests requested were only for the parental connection.
In any event, even if the initial evidence was false, after hearing from [the review applicant], [Ms A] and [the visa applicant] as well as [the review applicant]’s sister-in-law at hearing, the Tribunal is satisfied that [the visa applicant] is the niece of [the review applicant] and [Ms A], rather than their biological child. Their evidence is discussed later in this decision.
Furthermore, [the review applicant] and [Ms A] were insistent that a further DNA test of the uncle/niece relationship would show that this relationship exists. Their insistence on a further DNA test suggests that they are confident of the results. The review applicant requested that the Department ask the DNA clinic to use existing samples to test the uncle/niece relationship, but the Department refused this request. At the Tribunal hearing, Mrs Le said that the clinic had said that they could use existing samples to test the relationship and they would be very amenable to getting this done. The Tribunal accepts that [the review applicant] is the uncle of the visa applicant such that this test is not necessary.
Is the visa applicant a ‘dependent child’ of the review applicant and his wife, as defined in the legislation? (cl 101.211 of Schedule 2 to the Regulations)
A visa applicant must satisfy criteria for the visa. This includes cl 101.211 which provides that the applicant is a dependent child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen and has not turned 25. The applicant must either be a child (other than an adopted child), a step-child, or be adopted overseas by a person who, at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one.
The definition of ‘dependent child’ is set out in reg 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 stepchild
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.
step-child in relation to a parent, means:
(a) a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or
(b) a person who is not the child of the parent but:
(i) who is the child of the parent's former spouse or former de facto partner; and
(ii) who has not turned 18; and
(iii) in relation to whom the parent has:
(A) a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B) guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
The definition of ‘child’ is set out in s 5CA of the Act:
Section 5CA Child of a person
(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.
This definition notes that the examples given of a ‘child’ in s 5CA are not exhaustive.
A ‘child’ can be someone who meets the definition of child pursuant to the Family Law Act 1975 (Cth) (the Family Law Act), other than someone who is an adopted child. Part VII, Division A, Subdivision D of the Family Law Act sets out those circumstances under which a child would be considered to be the child of a person and includes biological children of either a marriage or de facto relationship, adopted children, and children born through artificial conception or surrogacy arrangements.
The visa applicant is not the biological child of [Ms A] and [the review applicant] (as found earlier in this decision) and was not born through artificial conception or surrogacy. This was confirmed in DNA results and by the review applicant.

The visa applicant is not a ‘step-child’ of [the review applicant] and [Ms A], as no claims were made in this regard.
The Tribunal is satisfied therefore that the visa applicant is not the child (other than an adopted child) of [Ms A] and [the review applicant], as required by cl 101.211 of Schedule 2 to the Regulations.
The Tribunal is however satisfied that the visa applicant meets cl 101.211 as she was adopted overseas by a person who, at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one.
Regulation 1.04 provides a definition of ‘adoption’. A person is taken to have been adopted if before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adopter under a number of circumstances. This includes where there are ‘other arrangements entered into outside Australia, that are, under subregulation (2), taken to be in the nature of adoption (reg 1.04(1)(c))’.
The key requirements contained in reg 1.04 are:
·the adopter must have assumed a parental role in relation to the adoptee;
·the role must be assumed before the adoptee attained the age of 18 years;
·the role must be assumed under certain arrangements, namely:
-formal adoption arrangements under Australian (or State or Territory) law; formal adoption arrangements under foreign law, where the adoption results in the legal recognition of the adopter(s) as the parent(s), in place of the previously recognised parents; or
-certain other arrangements entered into outside Australia that are ‘in the nature of adoption’ (referred to as ‘customary adoption’).
Regulation 1.04(2) provides that 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.
The first key requirement contained in reg 1.04 is that the adopter must have assumed a parental role before the adoptee attained the age of 18 years.
The Tribunal is satisfied that the parental role was assumed by [Ms A] and [the review applicant] before the adoptee attained the age of 18 years as she is currently aged [Age] (according to the taskera and her passport).
The Tribunal is satisfied that the adopter has assumed a parental role for the following reasons.
Firstly, the Tribunal has accepted for reasons set out earlier that [the visa applicant] is the niece of [the review applicant]. The Tribunal also accepts the evidence of [Ms A] and [the review applicant] that they made arrangements prior to the birth of [the visa applicant] that they would take on all parental responsibilities for the child. At the Tribunal hearing, [Ms A] and [the review applicant] told the Tribunal that when [the review applicant]’s sister-in-law, [Ms D], was pregnant, she and [the review applicant]’s brother, [Mr H], asked [Ms A] if she and [the review applicant] would be prepared to adopt the child, [the visa applicant], when she was born, as they already had two daughters and were poor. [The review applicant]’s brother was not working at the time. [Ms A] then called [the review applicant] who was in Australia, and they agreed to adopt the child in Afghanistan when she was born. They also agreed to pay the medical and hospital expenses. The evidence of [Ms A] and [the review applicant] about these events given was convincing and detailed and was corroborated by the taskera, UNHCR documents, photographs and, importantly, oral evidence from [Ms D], the biological mother of the child.
Secondly, there is no doubt that [the review applicant] and [Ms A] treat [the visa applicant] as if she is their own biological child and that she treats them as her biological parents. [The review applicant]’s evidence was that prior to birth they took her on as their daughter, and since then they have been her parents, for all purposes, emotionally, practically and financially. At the time they adopted [the visa applicant], they also had a daughter and son. Both these children have tragically passed away since then from illness. Their daughter passed away in Afghanistan and their son in [Country 2]. Clearly these deaths have had a significant impact on the couple. They were barely able to discuss these children at the Tribunal hearing. They now have two other children, but there is no doubt that they have always treated [the visa applicant] as their own child and their desire to look after her has been heightened since the deaths of their eldest two children.
[The visa applicant] always resided with them in Afghanistan, and they travelled with her to [Country 2] when she was about three or four years old when [the review applicant] was working there. They have paid all her expenses in Afghanistan, [Country 2] and [Country 1]. She has not, according to [the review applicant] and [Ms A], had a parental relationship with her biological parents. This was confirmed by her biological mother. [Ms A] travelled to [Country 1] from [April] 2022 to [June] 2023 with the applicant’s two siblings (who are Australian citizens) to be with [the visa applicant]. The Australian‑born son, [Master C], has a severe disability which would have made travel difficult but, nonetheless, [Ms A] travelled with the children and rented a house in [Country 1] to care for [the visa applicant]. (A medical report from [Dr I], a paediatrician, dated 13 September 2020, reported that [Master C] has [disorder] and requires substantial support.)
Evidence from the representative is that ‘their distress about [the visa applicant] is obvious to all who meet them’. The NDIS service provider for their disabled son also gave evidence of the sadness they have felt due to the separation from [the visa applicant]. It was obvious to the Tribunal at the hearing that they have been devastated and worn down by the separation. They cried when speaking about her and about the long time it has taken since their arrival in Australia for the matter to be resolved. [The review applicant] said had he known that the child visa would be refused or that it would take so long, he would never have left Afghanistan. This is strong evidence of their love and dedication to [the visa applicant].
Thirdly, [the visa applicant] gave evidence to the Tribunal that in her mind her parents are [the review applicant] and [Ms A]. When asked who her parents are, she said that ‘my father and mother are [the review applicant] and [Ms A]’. The fact that she identifies them as her parents corroborates their claim that they adopted her and that they have always had a parental role. She told the Tribunal that she is living with her biological parents currently, but that she misses her adoptive parents and wants to live with them.
Fourthly, there are numerous documents showing [the review applicant] and [Ms A] as the parents of [the visa applicant], including the taskera and the UNHCR documents. There are also many family photographs from Afghanistan, [Country 2] and [Country 1] portraying [the visa applicant] at different ages with various family members.
Finally, when speaking to [the visa applicant] in [Country 1] during the Tribunal hearing, the Tribunal spontaneously asked if the biological mother, [Ms D], would speak to the Tribunal. Both the representative and [the review applicant] had said that the biological parents, [Ms D] and [Mr H], were reluctant to make statements to the Tribunal as they feared that this may prejudice their applications for visas to [Country 3], even though the representative had tried to explain that there would be no impact on these applications. The Tribunal spoke to [Ms D] and explained that her name would be redacted in the decision. On this basis, [Ms D] agreed to speak to the Tribunal. She told the Tribunal that when [the visa applicant] was born she gave [Ms A] and [the review applicant] her child to ‘look after’ and adopt. She confirmed that they have always been [the visa applicant]’s mother and father, ‘throughout her life’. She said that [the visa applicant] regards them as her parents, and they have ‘always been her parents’. She told the Tribunal that it would be ‘very good’ for [the visa applicant] to live with her parents in Australia and asked the Tribunal to do whatever it could to unite them.
This evidence had not been prepared or considered and, as spontaneous evidence, it has been given significant weight. [Ms D], the biological mother, has confirmed that she had asked [Ms A] and [the review applicant] to adopt [the visa applicant] prior to her birth, that they had always been her parents, that she had relinquished full parental rights and that she fully supported the application for [the visa applicant] to ‘join her parents’ in Australia.
The Tribunal is satisfied therefore that [the review applicant] and [Ms A] took on a parental role for [the visa applicant] prior to her turning 18 ((reg 1.04(1)).
The next key requirement is that the parental role must have been assumed under formal arrangements for adoption or ‘certain other arrangements entered into outside Australia that are in the nature of adoption, known as customary adoption’ ((reg 1.04(1)(c)).
‘Customary adoption’ is recognised in reg 1.04(2) where:
·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;
·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;
·formal adoption was not available under the law of the place where the arrangements were made or not reasonably practicable in the circumstances; and
·the arrangements have not been contrived to circumvent Australian migration requirements.
The Tribunal is satisfied that the arrangements were made in accordance with the usual practice or a recognised custom in the culture of the adoptee and the adopter. The evidence of both [the review applicant] and [Ms A] was that it was customary for relatives to take on children for other family members where those family members were unable to care for the children. They both knew others who had taken on children for family members.
Independent country information supports this proposition.[1] Afghanistan does not have formal procedures for either domestic or international adoption, although there are provisions for guardianship which can be gained through the Afghan Family Court.[2] A 2010 article by Generation Progress on the difficulties of adopting children in Afghanistan noted that sharia law did not provide for adoption. The article quotes M. Ashraf Haidari, legal counsel for the Afghan embassy to the United States, who states that opposition to the western style of adoption could be driven by: … fear that there may be a breach of Afghan custom where the community and closest living kin become responsible for the orphaned child.[3]
[1] See for example, Max Planck Institute for Comparative and International Private Law, Kabeh Rastin‑Tehrani and Nadjma Yassari, ‘Max Planck Manual on Family Law in Afghanistan', 01 July 2012, p. 107.
[2] UNICEF, n.d, ‘Child Notice Afghanistan (2018)', 2
[3] Ali Muhammad Latifi, Generation Progress, 'The Challenges of Adopting Afghan Children', 11 August 2010, < >.
Max Planck in a study of Afghan family law in 2012 says that adoption is the acceptance of a child into one’s family, but it is not recognised in law.[4] An OECD Report notes that if a mother dies or is incapacitated, responsibility passes to relatives.[5] Reference is made in a number of sources to male relatives being requested for long-term guardianship or custody.[6] A Guardian article in 2021 also refers to the ‘common practice of customary adoption in Afghanistan’, ‘where extended multi-generational families are prevalent and maternal mortality is high. Orphaned infants are immediately adopted within family groups’.[7]
[4] Max Planck Institute for Comparative and International Private Law, Kabeh Rastin-Tehrani and Nadjma Yassari, ‘Max Planck Manual on Family Law in Afghanistan', 01 July 2012.
[5] OECD Development Centre, ‘Discrimination in the family’, 8 March 2019.
[6] United Nations Mission in Afghanistan and UNHCR, ‘Injustice and Impunity: Mediation of criminal offences of violence against women’, 29 May 2018.
[7] The Guardian, 4 September 2021, < Australian family pleads to be reunited with child stranded in Taliban‑controlled Afghanistan | Afghanistan | The Guardian>.
The caring for children of family relatives accords with Afghan culture which is family‑oriented and collectivistic.[8] Family responsibilities supersede personal needs.[9] Following the Taliban takeover many children fled with family relatives but not necessarily their biological parents.[10]
[8] Nina Evason, Cultural Atlas, ‘Afghan Culture’, 2019.
[9] Nina Evason, Cultural Atlas, ‘Afghan Culture’, 2019.
[10] CNN, 27 December 2021, <1,450 Afghan kids were evacuated to the US without their parents. Some are still in limbo | CNN>.
The Tribunal is satisfied based on these sources that 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 (reg 1.04(2)(a)).
The next issue is whether the child-parent relationship is significantly closer than any such relationship between the adoptee and any other person/s. The Tribunal is satisfied that it is. The following factors have contributed to this finding:
·The applicant has known [the review applicant] and [Ms A] as her parents since birth (evidence of [the review applicant], [Ms A], [the visa applicant] herself and her biological mother, [Ms D]).
·The applicant never lived with her biological parents in Afghanistan, always residing with [the review applicant] and [Ms A]. When the family went from Afghanistan to [Country 2] in 2015, [the visa applicant] accompanied them. This was with the consent of the biological parents. [The review applicant] and [Ms A] said that they could not have adopted her without the consent of the biological parents. [Ms D], the biological mother, has corroborated that she consented and that [the visa applicant] always lived with her adoptive parents.
·The adoptive parents applied for the visa applicant to accompany them to Australia, but her visa was rejected. The rest of the family were granted visas for Australia in 2018. According to the evidence of the adoptive parents, [the visa applicant] did not accompany them because ‘the Australian government would not let her’. Their biological child, [B], came with them following DNA tests, but [the visa applicant]’s application was refused. [Ms A] and [the review applicant] emphasised that they did not want to move to Australia without her. But they were told by a lawyer that their visas would be suspended if they did not come. They were also told that they would be able to get [the visa applicant] to Australia once they arrived. [The review applicant] told the Tribunal, ‘she was my daughter, I treated her as my own daughter. I would have stayed if I knew that she could not come’. [The review applicant] told the Tribunal that when they left for Australia, he sent the child to his maternal uncle in Kabul to look after her and sent money there.
·Although the biological parents and the visa applicant’s sisters and brothers are currently in [Country 1] with the visa applicant, this is a temporary arrangement until [the visa applicant] can join [the review applicant] and [Ms A] in Australia. When her visa was refused, [the review applicant] arranged for her to live with a maternal uncle in Afghanistan. They lived there for a year before the maternal uncle moved them to [Country 1] due to the security situation in Afghanistan. The maternal uncle was not happy in [Country 1] and returned to Afghanistan. His biological parents then went to [Country 1] because of the ‘security situation and the fighting’ in Afghanistan, and they have been looking after her there.
·The visa applicant’s adoptive parents have provided financial support for daily living needs and living arrangements (evidence of [the review applicant], [Ms A] and her biological mother, [Ms D]).
·The biological parents have applied for visas in [Country 3] without [the visa applicant] (submissions by the representative, and confirmed by the biological mother).
·[Ms A] travelled to [Country 1] from [April] 2022 to [June] 2023 with the applicant’s two siblings (who are Australian citizens) to be with [the visa applicant], demonstrating commitment to her. The Australian‑born son, [Master C], has a severe disability so the ability of [Ms A] to travel to be with [the visa applicant] is limited yet she has still spent a significant amount of time with her. She rented a house in [Country 1].
·The documents provided to the Department and Tribunal demonstrate that officially [the visa applicant]’s adoptive parents are listed as her parents. According to [the review applicant], the school documents in [Country 1] also name them as parents. It was submitted and the Tribunal accepts that at the time of their marriage, the ‘legitimate, genuine and legally issued Afghan marriage certificate’ held on the Department file’s records states that the bride and groom had three children, [Master F], born in [Year], [Miss G] born in [Year] and [the visa applicant] born in [Year]. [Ms A] and [the review applicant] are also registered as the parents by the UNHCR.
·The parents have plans for the visa applicant’s future – wanting her to live life in Australia with them as a family and to start school. Her adoptive father wants her to have private tutoring to ‘catch up’ to the Australian school system.
·[The visa applicant] has told the Tribunal that her relationship is closer with her adoptive parents than anyone else and has pleaded with the Tribunal to reunite her with her parents.
·The parent-child relationship must be ‘significantly closer’ than any such relationship between the adoptee and any other person (including, but not limited to, the natural parents) having regard to the nature and duration of the arrangements. In the case of Hussain, Nicholls FM found that it was reasonable and open to the Tribunal to draw a compelling inference from the mere circumstance that the child continued to live with his biological parents where the adopted parent was physically thousands of miles away in a different country. The Court found that it was open to the Tribunal to conclude the parents must have remained close to the child and played some role in day‑to‑day interaction or involvement with him.[11] The situation is different in this case. Most of the visa applicant’s life has been spent with her adoptive parents and siblings. [The visa applicant] has only lived recently with her biological parents due to circumstance. They went to [Country 1] to escape Afghanistan rather than to spend time with her. They have applied for visas to [Country 3] without including her. She has told the Tribunal that notwithstanding that she is currently residing with her biological parents, [the review applicant] and [Ms A] have always been her parents and she wishes to reside with them. She said that [the review applicant] and [Ms A] were her mother and father in Afghanistan, and when asked what her relationship is with [Ms D] and [Mr H] (her biological parents) she said that they are her ‘relatives’. She told the Tribunal that she misses her adoptive parents very much, and when she talks to her friends she tells them about her family in Australia. She talks to her adoptive parents every few days. When the Tribunal asked [the visa applicant] how her biological parents feel about her going to Australia, she said that they were very happy for her to go and ‘join my mother and father’.
·[Ms D], the biological mother, has also confirmed that the parent-child relationship between [Ms A] and [the review applicant] and [the visa applicant] is significantly closer than the relationship between the visa applicant and her biological parents. She also said that she ‘fully supports’ her application to reside in Australia. The Tribunal notes that according to the representative, [Ms D] and her husband did not wish to make statements to the Tribunal as they feared that somehow this may prejudice their applications to the Tribunal. The evidence of [Ms D] was given spontaneously to the Tribunal and was therefore unrehearsed and freely given. As such, the Tribunal has given [Ms D]’s evidence significant weight.
[11] Hussainv MIAC [2010] FMCA 729 and Hussain v MIAC (No 2) [2010] FMCA 730.

On the basis of this evidence considered cumulatively, the Tribunal is satisfied that the parent‑child relationship between [Ms A] and [the review applicant] and [the visa applicant] is significantly closer than any other relationship, including the relationship between [the visa applicant] and her biological parents ((reg 1.04(2)(b)).
The next issue for the Tribunal is whether formal adoption was available under the law of the place where the arrangements were made or not reasonably practicable in the circumstances. [The review applicant] and [Ms A] said that formal adoption was not available and/or practicable and the Tribunal accepts that this is the case. As referred to earlier in this decision, Afghanistan does not have formal procedures for either domestic or international adoption.[12]
[12]UNICEF, ‘Child Notice Afghanistan (2018)', 2; Max Planck Institute for Comparative and International Private Law, Kabeh Rastin-Tehrani and Nadjma Yassari, ‘Max Planck Manual on Family Law in Afghanistan', 01 July 2012; Ali Muhammad Latifi, Generation Progress, 'The Challenges of Adopting Afghan Children', 11 August 2010, < >.
The Tribunal is satisfied that formal adoption was not available in Afghanistan ((reg 1.04(2)(c)(i)).
The Tribunal is satisfied that the arrangements have not been contrived to circumvent Australian migration requirements ((reg 1.04(2)(c)(ii)). The Tribunal found the evidence of [the review applicant] and [Ms A] to be persuasive and genuine. They both spoke longingly and emotionally about their love for [the visa applicant] and their distress at being separated from her for five years. [The review applicant] was particularly persuasive when he said that he would have stayed in Afghanistan had he known that [the visa applicant]’s visa would be refused, or that it would take five years before she could join them. He said that he cannot sleep as he is so worried about her. Their evidence about the adoption is corroborated by evidence of [Ms D], the biological mother, and [the visa applicant] herself, who is aged [Age]. [The visa applicant], who was tearful in her evidence to the Tribunal, implored the Tribunal to assist her in reuniting with her mother and father. They have continued to maintain a close relationship despite the separation.
The Tribunal is satisfied therefore that the parental role was assumed under certain other arrangements entered into outside Australia that are in the nature of adoption, known as customary adoption ((reg 1.04(1)(c)).
The Tribunal is satisfied that at the time of application and decision, the visa applicant was adopted by a person who later became a citizen, permanent visa holder, or eligible New Zealand citizen. [Ms A] was not an Australian permanent resident in 2011 when she was living in Afghanistan, but according to her migration records she is now an Australian permanent resident.
Accordingly, cl 101.211(1)(c) was met at the time of application.
The Tribunal is satisfied that the applicant continues to meet the criteria in cl 101.211 at the time of decision. The applicant therefore satisfies cl 101.221 of Schedule 2 to the Regulations.
Conclusion about dependent child criteria
For the reasons above, the criteria in cls 101.211 and 101.221 of Schedule 2 to the Regulations are met.
CONCLUDING PARAGRAPHS
Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.211 of Schedule 2 to the Regulations; and
·cl 101.221 of Schedule 2 to the Regulations.
Date(s) of hearing: 22 October 2024
Representative for the Applicant: Mrs Marion Rose Le (MARN: 9256617)