Abay (Migration)

[2018] AATA 5235

Abay (Migration) [2018] AATA 5235 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Efraim Debasay Welela Abay

VISA APPLICANT:  Mr Alexander Kifle Habte

CASE NUMBER:  1609060

DIBP REFERENCE(S):  OSF2015/075229

MEMBER:Justin Owen

DATE:2 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 November 2018 at 4:15pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) – not a member of primary applicant’s family unit – stepson of primary applicant and son of her former partner – credibility issues – no corroborative evidence of visa applicant’s dependence on primary applicant – paucity of evidence given length of claimed relationship – unsatisfactory evidence of primary applicant’s relationship with visa applicant’s father – father’s disappearance – formal adoption obtained only after visa refusal – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321, rr 1.03, 1.04(1), 1.12, 1.05A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 May 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The primary applicant applied for the visa on 14 May 2015 on the basis of her relationship with her sponsor, the review applicant. At that time, 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, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 and cl.309.321 because as a secondary applicant he was not a member of the family unit of the primary applicant as defined in the Migration Regulations at Reg 1.12 at the time the visa application was made and at the time of decision.

4. The review applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant Selam Yosief Tesfaslase. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Minister’s delegate found that the visa applicant was not a member of the family unit of the primary applicant at the time the visa application was made and at the time of decision.  

8. The Tribunal has taken into consideration all the evidence in the Departmental file OSF2015/075229, the Tribunal’s file 1609060 and the oral evidence given by all parties at the Tribunal’s hearing.

   What is the background of the case based on all the evidence?

9. On 14 May 2015 the primary applicant Mrs Selam Yosief Tesfaslase applied for a 309/100 Partner visa (D1, Folio 20), sponsored by Australian citizen Mr Efraim Debasay Welela Abay (the review applicant).  The visa applicant applied as a dependent of the primary applicant.  It is claimed that the visa applicant is the stepson of the primary applicant and the son of her former partner.  On 5 May 2016 the application was refused by the delegate.  An application for a review of this refusal was subsequently made to the Tribunal. 

   Review

10. In order to be satisfied that the criteria for this visa is met, the secondary applicant, the visa applicant in this matter, must satisfy the definition of ‘member of the family unit’ at Regulation 1.12.  Member of the family unit is defined in Regulation 1.12.  For the definition of ‘member of the family unit’ in subsection 5(1) of the Act, and subject to sub regulations (2), (2A), (6) and (7), a person is a member of the 'family unit’ of another person (in this sub regulation called the family head) if the person is a spouse or de facto partner of the family head; or a dependent child of the family head or of a spouse or de facto partner of the family head; or a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or a relative of the family head or of a spouse or de facto partner of the family head who does not have a spouse or de facto partner; and is usually resident in the family head’s household; and is dependent on the family head.

11. Cl.309.311 requires that the applicant be a member of the family unit of the primary applicant at the time of application.  Cl.309.321 requires that the applicants be a member of the family unit of the primary applicant at the time of decision. 

12. Relevantly in this review, a ‘dependent child’ is defined in r.1.03.  ‘Dependent child’ means the child or step-child of the person (other than a child who is engaged to be married or has or de facto partner), being a child who has not turned 18; or has turned 18 and is ‘dependent’ on that person; or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. 

13. ‘Dependent’ is defined by r.1.05A.  Where there is a requirement of ‘dependency’, this requires that the visa applicant must be wholly or substantially reliant on the primary applicant as the ‘family head’ for financial support to meet their basic needs for food, clothing and shelter. It also requires that this degree of reliance has to have been for a substantial period immediately before the time that the application is being determined and that such reliance of financial support is greater than their reliance on any other person or source of financial support.

14. The review applicant attended the hearing with the primary applicant who has been granted her 309 visa and arrived in Australia on 17 May 2016.  The review applicant said he was living in with the primary applicant and their two children aged 3 years-old, and 1 year-old respectively.  They commenced a relationship in 2012 and married in 2013. 

15. The review applicant said that the primary applicant had never married her former partner, the claimed father of the visa applicant.  He said they were in a ‘companionship’ and he had been the primary applicant’s boyfriend.  The primary applicant agreed with this. The Tribunal asked the review applicant when he had first met the visa applicant.  He said it was in 2014 in Uganda.  He said that the primary applicant had always been very clear about her obligations concerning the visa applicant.  He said that she had told him that he was the son of her ex-partner, she was looking after him, and he was essentially part of her life if he wished to marry the primary applicant. 

16. The review applicant said the primary applicant’s former partner and the visa applicant’s father was Kefel Habet.  He said the visa applicant’s mother, Mebrihit Ghebregziabhier Debesay, had died in child birth.  The Tribunal notes that the review applicant provided it with a copy of a Certificate of Death from the Municipality of Asmara’s Public Registration Office with a death date of 2 January 1999 (T1, Folio.53).  For the purposes of this review, the Tribunal accepts the evidence that the visa applicant’s mother was deceased on this day. 

17. The Tribunal asked the review applicant about the whereabouts of the visa applicant’s father Kefen Habet.  He said that it was his understanding the visa applicant’s father had vanished after he tried to travel to Sudan in 2006.  The visa applicant’s father had not told the primary applicant or his wider family that he was leaving.  The primary applicant said that she received a telephone call from the visa applicant’s father from Sudan in 2006 but that was the last communication.  The review applicant said that they had explained in their previous written submissions to the Department and again to the Tribunal that he was missing from there on and presumed deceased.  The Tribunal notes the copy of the document provided from the Administration of Sub Zone Gela Nefhi of the State of Eritrea (T1, Folio.51) whilst stating the visa applicant’s father departed Eritrea in 2006 and was seen in Libya, is not dated until 22 September 2016 - after the date the delegate refused the visa.  

18. The Tribunal asked the review applicant as to his understanding of the relationship between the primary applicant and the visa applicant.  He said that the visa applicant was living with the primary applicant prior to the visa applicant’s father vanishing in 2006.  He said the visa applicant commenced living with the primary applicant in 2003.  He said that after 2006 she continued to look after him – cooking, cleaning and other household chores.  The Tribunal asked if the primary applicant was working during this period.  He said no.  He said the primary applicant’s family instead helped financially during this period.  The primary applicant’s oral evidence was reflective of these claims.  She stated that after the visa applicant’s father went missing her family helped care for the visa applicant until 2012 when she met the review applicant.  She said that she and the visa applicant lived with her family until she left Eritrea in April 2014.  The Tribunal asked what corroborative evidence she had of this claim that the visa applicant was living with her and her family until this time.  She said that her family could all attest to this. 

19. The Tribunal noted that, given the primary applicant and the visa applicant’s father were never married, what attempts were made to locate relatives from either side of his family to raise him as would be the custom.  The primary applicant said the visa applicant’s father’s mother – his paternal grandmother – had been around but he claimed she had been too old to look after the visa applicant after the disappearance of his father.  The review applicant said that she gave the visa applicant to the primary applicant to look after.  In support of this the primary applicant provided a Statement of Affidavit purportedly signed by the visa applicant’s grandmother before the Registrar of the High Court of Eritrea dated 10 February 2016.  In the affidavit the visa applicant’s grandmother states that the visa applicant was ‘raised under the care of his step-mother’ the primary applicant who has ‘assumed parental responsibilities over him/.  She declared that the primary applicant had raised and was still raising her grandson ‘as if she was his own mother. (T1, Folio.50). 

20. The Tribunal noted that the primary applicant on 15 October 2018 had signed a Form 1023 notifying the Department of Home Affairs of an incorrect answer on her original visa application.  She stated on the form that she had incorrectly answered ‘NO’ to question 62 which asked ‘Have you ever been in a same-sex or opposite-sex de facto relationship with a person other than your sponsor?’  In her Form 1023 she writes that she should have selected ‘YES’ to this question.  The Tribunal notes that the application was made on 14 May 2015 and the correction notified on 15 October 2018 – almost three and a half years later.  The review applicant said that the response was the result of a misunderstanding.  He said that the primary applicant and the visa applicant’s father were never married, never engaged, they just lived together.  The inference was that there was a lack of understanding as to the meaning of a de facto relationship and what this entailed.  The primary applicant in her oral evidence said that she didn’t at the time think it meant a ‘boyfriend/girlfriend’ relationship

21. At the hearing the Tribunal asked the review applicant if he knew why, given the primary applicant was claiming to be caring for the visa applicant, she departed Eritrea for Uganda and left the visa applicant behind in Eritrea, and particularly given he was underage at the time.  The review applicant said that that was because she had commenced a relationship with him.  He said that he paid for her to travel to Uganda.  The visa applicant he said was left with the primary applicant’s family.  The review applicant claimed that after about a month the visa applicant left Eritrea for Sudan.  After two to three weeks in Sudan the visa applicant contacted the primary applicant.  The review applicant said he then helped the visa applicant come to Uganda to reunite with the primary applicant – about three months after he had been separated from the primary applicant.  The primary applicant in oral evidence said that she left the visa applicant in Eritrea because whilst she could leave legally he couldn’t go.  She said he eventually left Eritrea for Sudan so he could subsequently travel to Uganda. In the statutory declaration she provided to the Tribunal at the hearing she stated that the Eritrean government did not issue a passport to the visa applicant because at that time the Eritrean Government had ceased issuing passports to the visa applicant’s age cohort.    

22. The review applicant claimed in oral evidence that it was his understanding that whilst the parents of the primary applicant helped look after the visa applicant, no one else from the visa applicant’s own biological family looked after him at all. 

23. The Tribunal asked the review applicant as to any evidence that the biological parents of the visa applicant are the primary applicant’s claimed former partner and the late Mrs Debesay.  The review applicant said the written statement of the visa applicant’s paternal grandmother was evidence of this.  The primary applicant referred to the hand-written Baptism Certificate the review applicant provided the Tribunal dated 11 February 1999.  (T1, Folio.52)  The Tribunal asked the primary applicant what evidence was there to show that she was previously in a relationship with the visa applicant’s father.  She responded that the visa applicant was a witness. 

24. The review applicant stated in oral evidence that he had sent approximately $200 per month to the visa applicant since the primary applicant came to Australia in 2016.  Between 2014 and that time he claimed to have been sending approximately $500 to Uganda for the benefit of both the primary applicant and the visa applicant. He said the funds were used for food, clothing and rent.  The primary applicant’s oral evidence was similar.  The Tribunal notes the records of financial transfers from the review applicant to the visa applicant between January 2014 and October 2018 (T1, Folio.42-45).  The Tribunal accepts that the review applicant is sending these funds on behalf of both himself and the primary applicant.  The review applicant claims that the money is only for the visa applicant. The review applicant said that they only provide money to the visa applicant.

25. It is claimed by the review applicant that the visa applicant is currently living with a friend of the primary applicant.  The review applicant claims the visa applicant pays the rent out of the funds he sends him.  No corroborative evidence was provided in support of this assertion. 

26. The review applicant and the primary applicant each claim the visa applicant is not married and has no girlfriend or partner.  For the purposes of this review the Tribunal accepts this claim.

27. The review applicant and the primary applicant each claim that they speak to the visa applicant by telephone about once a month.    The review applicant also provided the Tribunal with some telephone screenshots of what is claimed to be communication between the visa applicant and the review and primary applicants between November 2017 and October 2018. 

28. It is also claimed by both the review and the primary applicant that the visa applicant is not in gainful employment.   They also claim he has no siblings and essentially no other family in Africa beyond his 90-year old paternal grandmother. 

29. The Tribunal asked the review applicant about the primary applicant’s claimed guardianship of the visa applicant and noted the approval of guardianship from the High Court of Eritrea dated 16 July 2016 (T1, Folio.47).  The Tribunal noted that this guardianship had been applied for after the refusal by the delegate of the visa applicant’s application as a dependent.  The review applicant in oral evidence said that he didn’t know that he had to submit evidence of such guardianship with the visa applicant and did so after being advised by his lawyer.  The Tribunal said that, given the primary applicant was asserting that she had essentially had responsibility for the visa applicant from 2006 – when he was seven years old – why did she only formally apply for guardianship or adoption then.  The review applicant said that that they previously were unaware of this and they in fact only discovered they could seek approval of guardianship after the visa was refused by the delegate.  He said that he and the primary applicant view the visa applicant as a son. The review applicant also said in oral evidence that finances was difficult for the primary applicant making it difficult over the years for her to adopt or take out guardianship of the visa applicant.  The primary applicant said that she was only ‘asked’ to formally adopt the visa applicant after the refusal by the delegate.  The Tribunal asked that, given she was not a blood relative of the visa applicant, did she try and adopt the applicant any earlier.  She replied that she did not.  The primary applicant also provided a statutory declaration to the Tribunal at the hearing where she claimed that ‘due to financial constraints’ she did not formalise any adoption at the time and had now sought legal adoption.   

30. The Tribunal noted the evidence of the visa applicant’s paternal grandmother and her support for the establishment of a formal guardian relationship in 2016.  The Tribunal asked the review applicant about the visa applicant’s relationship with his grandmother.  He said that the visa applicant used to see his grandmother ‘all the time’ until he went to Uganda in 2014.  He said that the visa applicant lived close by his grandmother during this period.        

31. It was noted by the Tribunal at the hearing that whilst there was a statement from the visa applicant’s grandmother in 2016 as well as a letter from July 2016 (T1, Folio.62) stating the visa applicant was living with the primary applicant, there was little evidence from the time of application and before the application was lodged.  The Tribunal asked the review applicant what corroborative evidence he had of the visa applicant being a dependent in the care of the primary applicant in 2014 and prior to that.  He said he had no documents to prove it.  He said that people from around that time who knew that could prove this.  The primary applicant similarly said she had no documentation to prove this.  Again, she claimed the visa applicant and his grandmother could vouch for this claim. 

32. The Tribunal, noting the claims of the relationship between the visa applicant and the primary applicant, asked why the Ugandan Government issued the visa applicant with a refugee asylum seeker certificate.  The review applicant said this was because, unlike the primary applicant, he did not have a passport and a visa.  The review applicant said he paid for the primary applicant to come to Uganda.

33. The primary applicant was asked by the Tribunal that, given the visa applicant’s father and the primary applicant were not formally married, what attempts were made to locate relatives from either side of the visa applicant’s family to raise him as would be the custom.  The primary applicant said that the visa applicant only had his grandmother.  She stated that as she was aged, it was encumbered upon her to take on responsibility for the visa applicant.  The primary applicant admitted to the Tribunal that the visa applicant saw the grandmother on a regular basis and she lived close by to where the visa applicant was residing. 

1. Given the primary applicant’s claim that she was essentially looking after the visa applicant since he was four years old, the Tribunal asked the primary applicant about the visa applicant’s education.  She said he had studied until he was about 11 years of age in 6^th Grade.  She claimed the education had been provided for free through the authorities.

   FINDINGS AND REASONS

2. For the purposes of the provisions of cl.309.31, cl.309.311, cl.309.321, r.1.12 and r.1.05A in this case the “family head” is the primary applicant.  The Regulations distinguish between a person and his or her spouse.  Relevantly in this review, a ‘dependent child’ is defined in r.1.03.  ‘Dependent child’ means the child or step-child of the person (other than a child who is engaged to be married or has or de facto partner), being a child who has not turned 18; or has turned 18 and is dependent on that person; or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.  Given the visa applicant at the time of application was under 18 years of age, the Tribunal notes that the ‘dependency’ requirement does not apply to the time of application in the circumstances of this case. 

3. The Tribunal notes that the primary applicant is claiming that the visa applicant is essentially her step-son.  The Tribunal notes her statutory declaration of 25 October 2018 where she writes that since her former partner went to Libya in 2006 ‘he left his son with me when I cared and resumed parental responsibility ever since.  We have always lived together and inseparable.  I care and cared for Alexander as my step-son and we have a very close relationship.’  (T1, Folio.97) She is claiming she has custody of the visa applicant since 2006.   Member of the family unit is defined in Regulation 1.12.  The definition of ‘member of family unit’ under r.1.12(1) includes ‘dependent child of the family head.’  ‘Dependent child is defined under r.1.03 to include ‘step-child’. Step-child in relation to a parent is defined in r.1.03 as 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 a person who is not the child of the parent but who is the child of the parent's former spouse or former de facto partner; and who has not turned 18; and in relation to whom the parent has: 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 guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.  The question before the Tribunal is does the visa applicant satisfy the definition of ‘step-child’ under r.1.03.

4. The Tribunal is concerned, given the length of the claimed relationship between the primary applicant and the visa applicant, as to the paucity of corroborative evidence supporting the claim of a relationship that it is claimed goes back to 2003 when the visa applicant was only four years old. 

5. The Tribunal notes that there is no evidence before it to corroborate the claims of a relationship between the primary applicant and the visa applicant’s father beyond the correspondence from the claimed grandmother of the visa applicant.  The corroborative evidence before the Tribunal as to the visa applicant’s father going missing in the Sudan and the primary applicant’s assumption of responsibility for the visa applicant – such as the affidavit of the visa applicant’s claimed grandmother (T1, Folio.57) – dates from 2016 and after the 2016, almost a decade after he apparently disappeared and thirteen years after the primary applicant claims she began caring for the visa applicant. 

6. The primary applicant ten days before the Tribunal hearing signed a Form 1023 notifying the Department of Home Affairs of an incorrect answer on her original visa application.  She stated on the form that she had incorrectly answered ‘NO’ to question 62 which asked ‘Have you ever been in a same-sex or opposite-sex de facto relationship with a person other than your sponsor?’  In her Form 1023 she writes that she should have selected ‘YES’ to this question.  The Tribunal notes that the application was made on 14 May 2015 and the correction notified on 15 October 2018 – almost three and a half years later.  The Tribunal notes that the review applicant said that the response was the result of a misunderstanding.  He said that the primary applicant and the visa applicant’s father were never married, never engaged, they just lived together.  The inference was that there was a lack of understanding as to the meaning of a de facto relationship and what this entailed.  The primary applicant in her oral evidence said that she didn’t at the time think it meant a ‘boyfriend/girlfriend’ relationship.’  The Tribunal is not satisfied with this explanation.  The Tribunal notes from the Departmental decision record the review applicant provided that the primary applicant stated in her interview with the Department that ‘she was previously married to Kefel Habet.’  (T1, Folio.12).  In her original visa application form she however answered ‘NO’ to the question if she had been married before (D1, Folio.13).  Over three years after lodging her visa application she has now changed her answer as to whether she was in a de facto relationship.  The Tribunal considers the questions asked by the Department in its application form were clear and straight forward.  The review applicant and the primary applicant were utilising the services of a solicitor and migration agent in preparing the application.  The Tribunal on the evidence before it is not convinced that the primary applicant was in either a married or de facto relationship with the visa applicant’s father at anytime.  The Tribunal on the evidence before it, whilst accepting the visa applicant’s mother is deceased, is not satisfied that the visa applicant’s father has been missing since 2006, particularly when the only corroborative evidence that has been submitted is an affidavit from his claimed mother a decade later plus a document provided from the Administration of Sub Zone Gela Nefhi of the State of Eritrea (T1, Folio.51) whilst stating the visa applicant’s father departed Eritrea in 2006 and was seen in Libya which is dated 22 September 2016 – a decade after he apparently disappeared and after the date the delegate refused the visa.  The Tribunal gives the document in the limited weight. The Tribunal notes that a baptism certificate (T1, Folio.52) has been provided as evidence that the visa applicant is the son of the visa applicant’s former partner.  The Tribunal notes that the certificate, whilst dated 1999, is handwritten.  It was not previously submitted to the Department.  The Tribunal considers such handwritten documents can be easily prepared, manipulated and submitted for migration purposes.  The Tribunal gives the document no weight.  There is no other evidence beyond the testimony of the parties and the documentation of the visa applicant’s grandmother that can corroborate the primary applicant was in a relationship with the visa applicant’s father Kefel Habte.  The Tribunal therefore is not satisfied that the primary applicant was ever in either a de facto or a married relationship with the visa applicant’s father.  The visa applicant therefore cannot be considered the primary applicant’s step-son or step-child.  The Tribunal is not satisfied that the visa applicant is a dependent child as defined in r.1.12(1)(b).  The Tribunal is not satisfied the visa applicant meets the definition of step-child as defined in r.1.03(b). 

7. The Tribunal notes that the representative of the review applicant at the hearing offered to provide further evidence in support of the claim the visa applicant has been a dependent of the primary applicant since this time.  The Tribunal noted that the hearing was the opportunity to present such evidence but assured the parties that it would consider any further corroborative and supporting evidence between the hearing and the time of decision.  No further evidence was submitted to the Tribunal between the hearing and decision.

8. Given the primary applicant has submitted documentation from the High Court of Eritrea dated July 2016 being granted guardianship of the visa applicant, the Tribunal has considered whether the primary applicant as family head could be seen to have adopted the visa applicant.   ‘Adoption’ is defined in r.1.04.  In ‘formal adoption’ the adopter must have assumed a parental role in relation to the adoptee; this must have occurred before the adoptee attained 18 years of age; and the assumption of a parental role occurred under certain arrangements, namely: formal adoption arrangements under Australian (or state) law; or 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.

9. The Tribunal notes the documentation before it concerning the formal granting and certification of guardianship of the visa applicant to the primary applicant by the High Court of Eritrea.  The primary applicant states in her statutory declaration to the Tribunal that this constitutes ‘legal adoption’.   The Tribunal notes that the order is 16 July 2016, more than two months after the delegate refused the visa applicant’s application and two months after the primary applicant had been granted her own provisional 309 visa.  The visa applicant was not legally adopted nor was there any formal relationship of guardianship between the primary applicant and the visa applicant at the time of application.  Given the primary applicant claimed to have had sole responsibility for the visa applicant since 2006, and given she was claiming (for at least some of the period) that she had not married the visa applicant’s father, the Tribunal finds it unusual that custody was not sought and granted for virtually a decade.  The primary applicant has claimed that she faced financial issues in undertaking an earlier ‘guardianship’ or ‘adoption’ whilst the review applicant claimed they were unaware of the process.  The Tribunal however notes that on the evidence presented by the review applicant he was making consistent and regular financial transactions to the primary applicant since 2012.  The review applicant and the primary applicant had engaged a migration agent to manage the applications.  Given the application for guardianship or adoption was not made to the High Court of Eritrea until after the primary applicant had been granted her own visa and the visa applicant’s refused by the delegate, on the evidence before it the Tribunal is of the opinion that the application for guardianship or adoption was made entirely for migration purposes.  The Tribunal does not consider the granting of custody of the visa applicant to the primary applicant as persuasive evidence of a child / parent relationship.  The Tribunal finds that this was an administrative action undertaken purely to boost the chances of a successful migration application.  Given the lack of corroborative evidence of the claimed child / parent relationship between the visa applicant and the primary applicant, the Tribunal gives the granting of legal custody little positive weight in determining a claimed child / parent relationship. In regards to formal adoption, the Tribunal accepts at the time of decision the visa applicant has been formally adopted by the primary applicant.  The visa applicant was not however formally adopted by the primary applicant at the time of application in June 2015.      

10. The Tribunal notes that certain other arrangements entered into outside Australia that are ‘in the nature of adoption’ (i.e. customary adoption) can nevertheless meet the relevant criteria. The Tribunal has considered whether the applicant was customarily adopted by the review applicant and meets r.1.12 (1)(b). Adoption is defined in Regulation 1.04.  The Tribunal has considered whether the visa applicant could be said to have been customarily adopted by the primary applicant at the time of application.  As has been stated in the decision record supplied to the Tribunal by the review applicant, the department’s Procedure Advice Manual 3 places a high threshold on what situations can be considered to constitute ‘not reasonably practicable in the circumstances’.    

11. Customary adoption is recognised 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 or not reasonably practicable in the circumstances; and the arrangements have not been contrived to circumvent Australian migration requirements.

12. The Tribunal notes that the legal pursuit of custody, guardianship and formal adoption was available to the primary applicant.  The primary applicant indeed chose to avail herself of this option in July 2016 after her visa application had been approved and the visa applicant’s application refused.   The Tribunal on the evidence before it is not satisfied that the primary applicant was unable to formally adopt the visa applicant until 2016 due to financial problems.  She was receiving regular financial support from the review applicant from 2012.   The Tribunal is furthermore not satisfied that the primary applicant and the review applicant were unaware of the formal adoption process.  Given the visa applicant is not related in any way to the primary applicant, the Tribunal considers it unusual she would wait for a decade before formalising an adoptee or guardianship relationship.  The Tribunal on the evidence considers it was reasonably practicable for the primary applicant in the circumstances to utilise the processes of formal adoption of the visa applicant.   The Tribunal furthermore considers that formal adoption of the kind referred to in paragraph 1(b) of r1.04(1) was available under the law of Eritrea. 

13. The Tribunal notes the response at the hearing by the primary applicant and the review applicant that there were simply no relatives of the visa applicant available to raise him after the alleged disappearance of his father.  The Tribunal accepts that at the time of decision the visa applicant has been formally adopted in accordance with r.1.12.  The visa applicant was not however formally adopted by the primary applicant at the time of application.  The Tribunal considers that, given the length of the claimed relationship and the review applicant’s circumstances, formal adoption was both available under the law of Eritrea and was reasonably practicable in the circumstances at the time of application.   The Tribunal is not satisfied that at the time of application the visa applicant was customarily adopted in accordance with r.1.04.    

14. The Tribunal also notes the oral evidence of the primary applicant and the review applicant concerning the care and support they claim the primary applicant has provided the visa applicant and her claim that she was raising the visa applicant almost solely since 2006.  The Tribunal has considered this in the context of customary adoption under r.1.04.  The Tribunal notes the oral evidence of both the primary applicant and the review applicant that the visa applicant remained in consistent contact with his paternal grandmother for many years until he moved to Uganda.  Oral evidence was given that he was living nearby his grandmother.  On the evidence it appears she has played a significant role in his life.   The Tribunal notes the claim that the visa applicant’s grandmother is now 90 years old.  It is not convinced however that she has not played an important role in raising the visa applicant in the period since 2003.  The primary applicant and review applicant have claimed in oral evidence that there is no family member or relative to do this but the Tribunal is not convinced of this assertion, particularly given the very limited corroborative evidence they have provided of the support the primary applicant was providing at the time of application.  

15. The Tribunal on the evidence before it is not satisfied that the primary applicant was ever in either a de facto or a married relationship with the visa applicant’s father.  Given the submission by the review applicant of changes to the primary applicant’s visa application form some three and half years later on a question as straightforward as whether or not the primary applicant was in a de facto relationship, the Tribunal retains grave concerns as to the status of her past relationship with the visa applicant’s father.  The Tribunal is not convinced on the evidence that the primary applicant was ever in a married or de facto relationship with the visa applicant’s father.  The Tribunal is not satisfied that the primary applicant had guardianship or custody of the visa applicant at the time of application.   The visa applicant therefore cannot be considered the primary applicant’s step-son or step-child.  In the circumstances of this case the Tribunal does not consider the visa applicant can be considered a ‘dependent child of the family head’ under r.1.12(1).  The Tribunal does not consider the visa applicant satisfies the definition of ‘step-child’ under r.1.03.  As the visa applicant does not meet the definition of ‘step-child’ they cannot be considered a ‘dependent child.’  They cannot therefore be considered a dependent child of the family head.    

16. Member of the family unit is defined in Regulation 1.12. The definition of ‘member of family unit’ under r.1.12(1) includes ‘dependent child of the family head.’ ‘Dependent child is defined under r.1.03 to include ‘step-child’. Step-child in relation to a parent is defined in r.1.03 as 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 a person who is not the child of the parent but who is the child of the parent's former spouse or former de facto partner; and who has not turned 18; and in relation to whom the parent has: 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 guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country. The question before the Tribunal is does the visa applicant satisfy the definition of ‘step-child’ under r.1.03. The visa applicant cannot be considered a member of the ‘family unit’ of the primary applicant for the purposes of r.1.12.

17. As the Tribunal is not convinced the primary applicant was ever in a married or de facto relationship with the visa applicant’s father, the visa applicant does not satisfy the definition of dependent child of the primary applicant as required under r.1.12(1)(b).   Whilst the visa applicant was under the age of 18 at the time of application, the Tribunal remains unconvinced that the primary applicant was either in a married or de facto relationship with the visa applicant’s father.  The visa applicant was not formally adopted and guardianship not established until July 2016 after the visa applicant’s application was refused by the delegate.  The visa applicant therefore is neither the child nor step-child of the primary applicant at the time of application.      

18. The Tribunal notes r.1.12 also defines a member of the family unit as a ‘relative’ of the family head – in the case of this review the primary applicant.  The definition of relative includes ‘a close relative’.  Close relative is defined in r.1.03 as including a step-child.    Given the Tribunal is not satisfied on the evidence before it that the primary applicant was ever in a married or de facto relationship with the visa applicant’s father, the Tribunal is not satisfied that the visa applicant can be considered the step-child of the primary applicant.  The Tribunal is not satisfied that the visa applicant at the time of application met the definition of a ‘close relative’ and ‘relative’ for the purpose of r.1.12(1)(e).  

1. Given the extensive period of assumed parental responsibility claimed by the primary applicant and the review applicant, the Tribunal has carefully considered whether the visa applicant could be seen to have been adopted by the primary applicant as family head for the purposes of this review.   The Tribunal accepts that the visa applicant has been formally adopted by the primary applicant at the time of decision.  The Tribunal however remains unconvinced that the visa applicant meets the time of application criteria.  As stated in the delegate’s decision record, at interview with the Department the primary applicant stated that she had not adopted the visa applicant legally at that time.  Formal adoption did not occur until well after the lodgement of the application and after the refusal of the visa applicant’s visa.  The Tribunal has nevertheless considered whether the visa applicant could be said to have been customarily adopted by the primary applicant at the time of application and before then.  The Tribunal does not on the evidence consider the primary applicant has done so.  The Tribunal is of the firm view that formal adoption was reasonably practicable for the primary applicant given the circumstances.  The Tribunal is not convinced that financial constraints precluded her from doing so and is not convinced the primary applicant was unaware of the process, particularly given she claims to have been responsible for the visa applicant since 2006.  The Tribunal considers the fact the High Court of Eritrea so readily agreed to the primary applicant’s application is illustrative that formal adoption was available under the law of Eritrea.  The Tribunal furthermore considers the timing of the application – just weeks after the delegate’s refusal – is suggestive that the arrangements may have in fact been contrived for migration purposes. 

2. Clause 309.311 is a time of application requirement for the granting of this visa.  The Tribunal is not satisfied that the visa applicant met the requirements of r.1.12(1) (b) at the time of application.  As they do not meet regulation 1.12(1)(b) at the time of application, they do not meet the definition of a member of the family unit under regulation 1.12.  The Tribunal is also not satisfied that the visa applicant met the requirements of r.1.12(1) (e) at the time of application.  As they do not meet regulation 1.12(1)(e) at the time of application, they do not meet the definition of a member of the family unit under regulation 1.12.  The Tribunal is therefore not satisfied that at the time of application the visa applicant was a member of the family unit of a person that satisfies the primary criteria in subdivision 309.31.

3. The Tribunal is furthermore not satisfied that the visa applicant was adopted by the primary applicant at the time of application.  The Tribunal finds that the visa applicant does not meet the requirements of r.1.04(1)(b) and r.1.04(2)(c)(i)    

4. Given the Tribunal is not satisfied that the visa applicant at the time of application was either a member of the family unit of the primary applicant or was adopted by the primary applicant, the applicant fails to meet cl 309.311.   

5. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

   DECISION

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

   Justin Owen
   Senior Member