Adel (Migration)

[2021] AATA 4121

Adel (Migration) [2021] AATA 4121 (15 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammed Adel

VISA APPLICANT:  Master Ali Ahmad Adel

CASE NUMBER:  1911425

DIBP REFERENCE(S):  2013/020540 OSF2013/020540

MEMBER:Kate Millar

DATE:15 October 2021

PLACE OF DECISION:  Adelaide

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.

Statement made on 15 October 2021 at 6:00pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – dependent child – customary adoption by his brother – both parents are deceased – no immediate female relatives locally – money transfers – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.311; rr 1.03, 1.04, 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Master Ali Ahmad Adel (Ali Ahmad) is a citizen of Afghanistan.  His brother, the review applicant Mr Mohammed Adel, is a citizen of Australia.  Mr Adel married Ms Fatema Adel and on 2 May 2013 Ms Adel applied for a Partner (Provisional) (Class UF) visa.  Included in this application, as members of her family unit were Mr and Mr Adel’s three biological children, and Mr Adel’s brothers Ali Ahmad and Assadullah.

2. Ms Adel and her three biological children were granted the visas and arrived in Australia on 28 March 2019.  Assadullah’s visa application was withdrawn.  Ali Ahmad’s visa application was refused because the delegate was not satisfied he was a member of Ms Adel’s family unit as defined in the Migration Act 1959 (the Act) and Migration Regulations 1994 (the Regulations).

3. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 March 2019 to refuse to grant Master Ali Ahmad Adel (Ali Ahmad) a Partner (Provisional) (Class UF) under s.65 of the Migration Act 1958 (the Act).

4. Mr Adel appeared before the Tribunal on 11 October 2021 to give evidence and present arguments and was represented in relation to the review by a legal practitioner. The Tribunal also received oral evidence from Ms Fatema Adel and Ali Ahmad.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Ali Ahmad is a member of Ms Fatema Adel’s family unit.

7. At the time Ali Ahmad applied for the visa, 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). As Ms Adel meets the primary criteria, Ali Ahmad need only meet the secondary criteria to be granted the visa.

8. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 because the delegate was not satisfied Ali Ahmad met the requirements to be a member of the family unit of a person who satisfies the primary criteria.  As Ali Ahmad made a combined application with Ms Adel, and she meets the primary criteria, the only issue is whether he meets the definition of member of the family unit at the time of the visa application.

9. The term ‘member of the family unit’ is defined in r.1.12.  As it applied to Ali Ahmad he must be a dependent child of Ms Adel or Mr Adel, or he is a relative of Ms Adel or Mr Adel who does not have a spouse or defacto partner, is usually resident in Ms Adel’s household and is dependent on Ms Adel.

10. Mr Adel submits that he and Ms Adel adopted Ali Ahmad following the death of their parents.  He submits that as a result Ali Ahmad is a dependent child and is a member of Ms Adel’s family unit for the purposes of cl.309.311. 

11. The circumstances in which a person is taken to be adopted by another person are set out in r.1.04 of the Regulations.  It is not contended that any formal adoption arrangements have been made in accordance with that Regulation, and Mr Adel relies on Ali Ahmad having been adopted in accordance with other arrangements entered outside Australia that are taken to be in the nature of adoption.

12. The arrangements that are taken under r.1.04(1)(c) of the Regulations to be in the nature of adoption are set out in r.1.04(2), and these are: 

    (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.

13. The Max Planck Institute for Comparative Public Law and International Law has published a manual on Family Law in Afghanistan.[1]

    [1] Tehrani-Yassari_Max-Planck-Manual-on-Afghan-Family-Law_2012.pdf

14. This states that the legal creation of a parent-child relationship through adoption is not recognised in Islamic law, and this is expressed in Article 228 of the Civil Code.[2]  The Tribunal is satisfied that formal adoption of the kind referred to in r.1.04(1)(b) is not available in Afghanistan. 

    [2] p 117

15. While the parties were in Pakistan, they were there as unlawful non-citizens and any formal adoption arrangements available in Pakistan were not available to the parties.

16. Mr Adel claims that both of his parents are deceased.  When looking to whether Ali Ahmad has been adopted in accordance with the usual practice or recognised custom in the culture of the adoptee and the adopter, the Tribunal must first consider whether Ali Ahmad’s parents are deceased, then look to what is the usual practice or recognised custom in his culture. 

17. Mr Adel claims his mother died on 9 August 2002.  A death certificate issued by the Ministry of Foreign Affairs General Consulate of Afghanistan in Quetta was provided stating she died during delivery in Urozgan Province in Afghanistan.   The death certificate was issued 12 February 2013.  At hearing Mr Adel could not recall obtaining a death certificate or specify how this death certificate has been obtained.    Problematic in this account is that Ali Ahmad is stated to have been born on 31 December 2002, several months after his mother reportedly died. 

18. At hearing Mr Adel said his mother died in childbirth following the birth of Ali Ahmad and she is buried in Sewak village.  Ms Adel stated she did not know how her mother-in-law died as she had already passed away when she married Mr Adel.  She said the reason she started looking after Ali Ahmad and married Mr Adel is because Ali Ahmad’s mother passed away. 

19. The Tribunal does not consider the death certificate can be relied on other than as a record of what the issuer has been told by those seeking the death certificate.  Records of dates, such as birth and death, may not be specific in Afghanistan.[3]  The Tribunal is also mindful that identifying a precise date in a Western calendar is difficult for Mr Adel who says he is illiterate in Dari and has limited literacy in English. 

    [3] Poladi, H 1989, The Hazaras, Mughal Publishing Co., Stockton, p. 155 <CIS28718> 

20. Mr Adel, Ms Adel and Ali Ahmad all gave oral evidence that his mother is deceased. 

21. Mr Adel claims his father died on 14 April 2008 from cardiac arrest in Urozgan province in Afghanistan.  He provided a death certificate issued by the Ministry of Foreign Affairs General Consulate of Afghanistan in Quetta. At hearing he could not recall having obtained a death certificate or how this has been obtained.

22. Mr Adel said his father died in the village in Urozgan at home.  He said his father was unwell for quite a while before he died and had knee and leg problems and some health conditions, but they did not know his father died, and his wife Ms Adel was at the home.  He said Ali Ahmad and Asadullah were at a neighbour’s house.  There was a funeral and recitation of the Koran for his father at their house, and his father was buried in Sewak village. 

23. Ms Adel stated her father-in-law died in 2008 in Sewak.  She said she did not know why he died, he became unwell and passed away.  She said she was not with him when he died, and her husband and other people form the village wee with him.  She said Ali Ahmad and Asadullah we too little to be present and were playing outside. 

24. Mr Adel, Ms Adel and Ali Ahmad gave oral evidence that his father is deceased.  Mr Adel and Ms Adel independently provided consistent evidence on the circumstances of his death. 

25. After the hearing Mr Adel provided statutory declarations from Assadullah Nasiri and Reza Muzafari.  Both statutory declarations are sworn before a legal practitioner and contain a declaration from an interpreter that the contents of the declaration were interpreted to the declarants before they were signed. 

26. Reza Muzafari states that he has known Mr Adel since they were children and he lived 20 minutes’ walk from Mr Adel’s village.  He states he moved to Pakistan about 25 years ago, before Mr Adel but he heard new of the death of Mr Adel’s parents before Mr Adel moved to Pakistan.

27. Assadullah Nasiri declares that he has known Mr Adel for approximately 30 years when they lived in Afghanistan.  Assadullah states he lives approximately 1 hour walking distance from Mr Adel.  Assadullah declares he has known for many years Mr Adel’s parents are deceased.

28. Having considered the oral evidence of Mr Adel, Ms Adel and Ali Ahmad and the statutory declarations provided, the Tribunal finds that Ali Ahmad’s parents are deceased.   

29. In looking to the usual practice, or a recognised custom in Mr Adel and Ali Ahmad’s culture, the Tribunal has considered who would generally take custody of a minor where both parents are deceased. 

30. The Tribunal has had regard to DNA tests conducted at the request of the Department that show moderately strong support that Mr Adel is Ali Ahmad’s brother, and has considered if the usual practice, or a recognised custom in Mr Adel and Ali Ahmad’s culture is that the arrangements are in the nature of adoption by his brother in the event of the death of his parents.

31. The context in this case includes that Mr Adela and Ms Adel gave consistent independent oral evidence that they married within 6 – 12 months of the death of Ali Ahmad’s mother, and prior to the death of his father, with the intention that Ms Adel would care for Ali Ahmad and Assadullah.  Ms Adel is Mr Adel’s cousin, and her father is Mr Adel’s maternal uncle. 

32. Ali Ahmad gave oral evidence that following the death of his parents, Mr Adel has been responsible for his care and this has been provided by Ms Adel up to the time she left Pakistan to come to Australia.  He currently lives with his brother Assadullah who has married an Australian citizen and plans to depart for Australia soon.  All those who gave evidence stated they are concerned for Ali Ahmad’s welfare when Assadullah leaves Pakistan.  

33. The Max Planck Institute for Comparative Public Law and International Law Max Planck Manual on Family Law in Afghanistan[4] describes the provisions of the Afghan Civil Code in relation to marriage and children.  It states that the Afghan Civil Code provide a hierarchy of laws, with the Civil Code prevailing then Hanifi jurisprudence then customs or tradition.  It states family laws in Afghanistan are a mix of customary, Islamic and statutory laws, but that in practice this hierarchy has failed to be applied and that mainly customary law is applied particularly in matters of family law.[5]

    [4] Tehrani-Yassari_Max-Planck-Manual-on-Afghan-Family-Law_2012.pdf,  

    [5] p. 5- 6

34. Article 239 of the Afghan Civil Code states women have the right of care of the child, and then the maternal line if the mother is unable to care for the child.[6]  However if there are no women related to either parent available for custody it is transferred to the father, the paternal grandfather or ascendants in the male paternal line or the full brother.[7]

    [6] p 104 - 105

    [7] ibid

35. In this case, the parties all independently gave evidence that there were no female relatives in the local area who could care for Ali Ahmad.  Mr Adel states his mother had one sister with whom the family was not in contact.  In the sponsorship form for the visa, Mr Adel named Farzana as a sister, but in oral evidence he stated this information is incorrect and he does not have a sister called Farzana. 

36. Mr Adel’s father arranged for his niece, Ms Adel, to care for Ali Ahmad and then to marry Mr Adel to provide ongoing care for Ali Ahmad.

37. As there were no immediate female relatives in the same local area, it In these circumstances, it is consistent with usual practice or recognised custom for Mr Adel to adopt Ali Ahmad, and Ms Adel to assume a parental role upon her marriage to Mr Adel.   That he has assumed this role is evident from the money transfers to support the family. 

38. The Tribunal is satisfied that the relationship between Mr Adel and Ali Ahmad, and Ms Adel and Ali Ahmad is significantly closer than Ali Ahmad’s relationship with any other person. 

39. the Tribunal finds that Ali Ahmad is the adopted child of Mr Adel and Ms Adel within the meaning of r.1.04 of the Regulations.

40. To meet the definition of member of the family unit, Ali Ahmad must at the time of the application be a dependent child.  The term dependent child is defined in r.1.03 of the Regulations and includes a child who has not turned 18 years of age (r.1.03(a)).

41. Ali Ahmad’s date of birth is 31 December 2002.  At the time of the application he was approximately 9 years old.  As he was under 18 at the time of the application, he is a dependent child of Mr Adel and Ms Adel as defined in r.1.03(a) of the Regulations. 

42. As at the time of the visa application Ali Ahmad was a dependent child of Mr Adel and Ms Adel, he meets the definition of member of the family unit and meets the requirements of cl.309.311 of Schedule 2 of the regulations.

43. 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.

    DECISION

44. 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.

    Kate Millar
    Senior Member