Adel (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by Ms Fatema Adel. The dispute centred on whether Ali Ahmad, the visa applicant, qualified as a member of Ms Adel's family unit. The decision was made by Senior Member Kate Millar of the Tribunal.

The primary legal issue before the Tribunal was whether Ali Ahmad met the definition of a "member of the family unit" as defined in regulation 1.12 of the Migration Regulations 1994. This definition required Ali Ahmad to be a dependent child of Ms Adel or Mr Adel, or a relative who was usually resident in Ms Adel's household, dependent on her, and without a spouse or de facto partner. The Tribunal was specifically asked to consider whether Ali Ahmad was a dependent child due to customary adoption by Ms Adel and her brother, Mr Adel, following the death of his parents.

The Tribunal reasoned that while no formal adoption had occurred under Australian law, the arrangements could potentially be considered "in the nature of adoption" under regulation 1.04(1)(c) if they met the criteria in regulation 1.04(2). These criteria require that the arrangements were made in accordance with the usual practice or recognised custom of the relevant culture, that the child-parent relationship was significantly closer than any other, and that the Minister was satisfied that formal adoption was unavailable or impracticable and the arrangements were not contrived to circumvent migration requirements. The Tribunal noted that the parties relied on arrangements entered into outside Australia, and referenced a manual on Afghan Family Law, suggesting the context of the adoption.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant, Ali Ahmad, be considered to meet the criteria under cl.309.311 of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the Subclass 309 visa.