MOHAMMADI (Migration) - [2022] AATA 1773

MOHAMMADI (Migration) [2022] AATA 1773 (8 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammad Ibrahim MOHAMMADI
VISA APPLICANT:  Mr Mahadi Mohammadi
REPRESENTATIVE:  Mr Ali Azimi (MARN: 1568772)
CASE NUMBER:  1910511
DIBP REFERENCE(S):  2013/019918 OSF2013/019918
MEMBER:Russell Matheson
DATE:8 April 2022
PLACE OF DECISION:  Sydney
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 and cl.309.321 of Schedule 2 to the Regulations.

Statement made on 08 April 2022 at 1:49pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – dependent child – customary adoption – son of paternal uncle – both parents deceased – no death certificates – adoption under Islamic Sharia law – kafala – recognition of customary adoption – legal and formal adoption not available in Afghanistan – wholly or substantially reliant for financial support – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04, 1.05, 1.12; Schedule 2, cl 309.311, 309.321
CASES
Al Naqi v MIAC [2007] FMCA 874
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 March 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 25 February 2013 on the basis of his relationship with his 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 (Cth) (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.
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 the visa applicant was the dependent child of, or member of the family unit, of the primary visa applicant.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.
The review applicant appeared before the Tribunal on 12 January 2022 to give…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MOHAMMADI (Migration) [2022] AATA 1773
Case: [2022] AATA 1773
Decision Date: 8 April 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa (Subclass 309) by Razia Mohammadi, with her husband Mohammad Ibrahim Mohammadi as the review applicant and sponsor. The application included their three biological children and a fourth child, Mahadi Mohammadi, who was claimed to be customarily adopted. The Department had refused to grant the visa to Mahadi Mohammadi, finding that customary adoption under Islamic Sharia law (kafala) was not legally, religiously, or socially recognised in Afghanistan, and therefore he was not validly adopted for the purposes of the Act.

The primary legal issue before the Tribunal was whether Mahadi Mohammadi qualified as a dependent child and an adopted child within the meaning of the relevant regulations, and consequently, as a member of the primary visa applicant's family unit. This required determining if the customary adoption, which occurred in Afghanistan where legal and formal adoption was not available, was to be recognised for the purposes of the Migration Act and Regulations. The Tribunal also considered the secondary visa criteria, specifically clauses 309.311 and 309.321 of Schedule 2 to the Regulations, which relate to being a member of the family unit at the time of application and decision, respectively.

The Tribunal acknowledged that the visa applicant was 11 years old at the time of the application and that the primary visa applicant and her three biological children had already been granted Subclass 309 and 100 visas and had arrived in Australia. The review applicant did not claim Mahadi Mohammadi to be his biological child. The Tribunal was satisfied that the visa applicant had made a combined application with the primary visa applicant, who met the primary criteria for the visa. Crucially, the Tribunal found that the visa applicant met the criteria under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Subclass 309 visa for reconsideration by the Minister, with a direction that the visa applicant met the specified criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The review applicant claims the visa applicant is the customarily adopted son of his wife and himself. The Department decision record finds that there is no legal, religious or social recognition of customary adoption in Afghanistan, and therefore the visa applicant has not been validly customarily adopted for the purposes of the Act.CONSIDERATION OF CLAIMS AND EVIDENCE The main issue in the present case is whether the visa applicant is the dependent child of the primary visa applicant within the meaning of r.1.03 and is the adopted child of the primary visa applicant and the review applicant within the meaning of r.1.04 and is the member of the primary visa applicant’s family unit within the meaning of r.1.12(1)(b). Based on the information available to the tribunal, I am satisfied that the visa applicant was aged 11 years at the time of application for the visa. Based on information including movement records for the primary visa applicant and I am satisfied that the primary visa applicant and the other three secondary visa applicants were granted a subclass 309 and subclass 100 partner visa on 19 March 2019, and arrived in Australia on 3 April 2019, and are current holders of subclass 100 visas. The Department was satisfied that the other three secondary visa applicants were the biological children of the review applicant and the primary visa applicant. The review applicant does not claim the visa applicant in this review is his and his wife’s biological child. I am satisfied that the review applicant, the primary visa applicant, and the visa applicant are citizens of Afghanistan of Hazara ethnicity.Secondary visa criteria Clause 309.311 is a time of application criterion and requires the visa applicant be a member of the family unit of, and have made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. Clause 309.321 is a time of decision criterion, and cl.309.321(a) applies where the primary visa applicant is currently the holder of a Subclass 309 visa. Cause 309.321(b) requires the visa applicant is a person to whom each of the following applies (i) he made a combined application with a person who satisfies the primary criteria; (ii) subsequent to the combined application being made, the visa applicant was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria; and (iii) that subsequent to the person who satisfies the primary criteria being granted a Subclass 309 visa and a Subclass 100 visa the Tribunal found the visa applicant to be a member of the family unit of the person who satisfies the primary criteria. Based on the application forms and supporting documents, the Tribunal is satisfied that the visa applicant made a combined application with the primary visa applicant, Razia Mohammadi. Based on the records and information available to me I am satisfied that the primary visa applicant has been granted a Subclass 309 and Subclass 100 visa and is therefore a person who satisfies the primary criteria. Based on the Department decision record dated 19 March 2019 the Tribunal is satisfied the Department found the visa applicant did not meet the criteria for the visa because the Department was not satisfied that he was a member of the family unit of the primary visa applicant.

Decision

Reasons for decision

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 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 and cl.309.321 of Schedule 2 to the Regulations.Russell MathesonMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background Mrs Razia MOHAMMADI (primary visa applicant) applied for a Partner (Provisional) (Class UF) (Subclass 309) and Partner (Migrant) (Class BC) Subclass 100 visa based on her marriage to Mr Mohammad Ibrahim MOHAMMADI (sponsor/review applicant). Included in the application as secondary applicants were:·The three biological children of the primary visa applicant and review applicant; Farhad, Adela and Sajad Mohammadi; and·One customarily adopted child, Mahadi Mohammadi, who is the subject of this review application. The primary visa applicant and her three biological children migrated to Australia in 2019 leaving the visa applicant (Mahadi) behind in Pakistan. The review applicant claims the visa applicant is the customarily adopted son of his wife and himself. The Department decision record finds that there is no legal, religious or social recognition of customary adoption in Afghanistan, and therefore the visa applicant has not been validly customarily adopted for the purposes of the Act.CONSIDERATION OF CLAIMS AND EVIDENCE The main issue in the present case is whether the visa applicant is the dependent child of the primary visa applicant within the meaning of r.1.03 and is the adopted child of the primary visa applicant and the review applicant within the meaning of r.1.04 and is the member of the primary visa applicant’s family unit within the meaning of r.1.12(1)(b). Based on the information available to the tribunal, I am satisfied that the visa applicant was aged 11 years at the time of application for the visa. Based on information including movement records for the primary visa applicant and I am satisfied that the primary visa applicant and the other three secondary visa applicants were granted a subclass 309 and subclass 100 partner visa on 19 March 2019, and arrived in Australia on 3 April 2019, and are current holders of subclass 100 visas. The Department was satisfied that the other three secondary visa applicants were the biological children of the review applicant and the primary visa applicant. The review applicant does not claim the visa applicant in this review is his and his wife’s biological child. I am satisfied that the review applicant, the primary visa applicant, and the visa applicant are citizens of Afghanistan of Hazara ethnicity.Secondary visa criteria Clause 309.311 is a time of application criterion and requires the visa applicant be a member of the family unit of, and have made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. Clause 309.321 is a time of decision criterion, and cl.309.321(a) applies where the primary visa applicant is currently the holder of a Subclass 309 visa. Cause 309.321(b) requires the visa applicant is a person to whom each of the following applies (i) he made a combined application with a person who satisfies the primary criteria; (ii) subsequent to the combined application being made, the visa applicant was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria; and (iii) that subsequent to the person who satisfies the primary criteria being granted a Subclass 309 visa and a Subclass 100 visa the Tribunal found the visa applicant to be a member of the family unit of the person who satisfies the primary criteria.