Dilawar (Migration)

The Administrative Appeals Tribunal (Migration and Refugee Division) considered the case of an applicant seeking an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant claimed to be the carer of an Australian relative, Mr. Khan, based on a claimed father-daughter relationship established through an informal or customary adoption in Pakistan in 1995, which was later formalised by a court document in 2016.

The primary legal issue before the Tribunal was whether the applicant met the requirements of regulation 836.221 of the Migration Regulations 1994, which necessitates being a "carer" of an "Australian relative." This involved determining if the claimed adoption, both informal and formal, satisfied the definitions of "relative" and "adoption" as provided in regulations 1.03 and 1.04, respectively. Specifically, the Tribunal had to assess whether the informal adoption in 1995, evidenced by oral declarations and subsequent financial support, and the formalisation in 2016, constituted a legal or recognised customary adoption where Mr. Khan assumed a parental role before the applicant attained the age of 18.

The Tribunal affirmed the decision not to grant the visa. It found that while the applicant and Mr. Khan provided evidence of an informal adoption in Pakistan in 1995, involving oral declarations and financial support for the applicant's education and living expenses, there was a lack of verifiable evidence to conclusively establish this as a legal or recognised customary adoption at that time. The subsequent court document in 2016, formalising the adoption, occurred after the applicant had attained the age of 18. Consequently, the Tribunal concluded that the applicant had not satisfied the criteria for being a carer of an Australian relative under the Migration Regulations.