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

1. 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).

2. 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.

3. 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.

4. 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.

5. The review applicant appeared before the Tribunal on 12 January 2022 to give evidence and present arguments.

6. The review applicant was represented in relation to the review.

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

   Background

8. 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.

9. The primary visa applicant and her three biological children migrated to Australia in 2019 leaving the visa applicant (Mahadi) behind in Pakistan.

10. 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

11. 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).

12. 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.

13. 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

14. 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.

15. 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.

16. 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.

17. The issue as to whether the visa applicant meets the requirements of both cl.309.311 and cl.309.321 and central to this review, is whether he is the dependent child of, and a member of the family unit of, the primary visa applicant.

    Customary adoption

18. 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.

19. Customary adoption is defined in the regulations. Regulation 1.04 (1) outlines when a person is taken to have been adopted by a person and r.1.04(1)(c) prescribes that other arrangements entered into outside Australia, as listed under reg 1.04(2), are taken to be in the nature of adoption. The Reg 1.04(2) requirements to meet customary adoption are that (i) the arrangements were made in accordance with the usual practice or a recognised custom in the culture(s) of the adopter and adoptee; (ii) the child – parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person(s); (iii) formal adoption is not available under the law of the place where the arrangements were made, or was not reasonably practicable in the circumstances; and (iv) the arrangements have not been contrived to circumvent Australian migration requirements.

20. The Tribunal has considered the claims of the review applicant, and the conclusions of the Department.

21. The visa applicant is said to be the son of the review applicant’s paternal uncle and his wife. The visa applicant’s mother died at birth and his father died later due to a medical condition (lung disease) when the visa applicant was a two-year-old. The review applicant and his wife the primary visa applicant assumed responsibility for the visa applicant and took him into their home and family. 

22. It is claimed in their written submission that Mahdi Mohammadi (the visa applicant) is dependent upon the primary visa applicant and has lived with her and her children since birth. It is claimed that the visa applicant is the child of the review applicant’s paternal uncle, Nasir MOHAMMADI. Nasir’s wife, Baiza, passed away during childbirth. Although the review applicant’s uncle was still alive, the primary visa applicant ended up caring for the visa applicant as they all lived in the same household, and it was expected from them to look after the visa applicant. The  review applicant’s mother was unable to care for the visa applicant as she was already caring for the review applicant’s newborn brother, Ramazan Ali. It is also claimed that the primary visa applicant and review applicant did not have any children at the time, so they adopted Mahdi. The review applicant’s uncle passed away due to illness when the visa applicant was two years old. The visa applicant was therefore adopted by the  primary visa applicant and review applicant but there was no formal or legal arrangement available in Afghanistan. As a child belongs to the father’s family, being the only adult cousin with a wife, it is claimed that the review applicant was the best person to take care of the visa applicant. The review applicant had not initially declared that the visa applicant is not his biological child as he had lived with them since he was a newborn baby and they customarily adopted him at birth.

23. The Tribunal has considered that the visa applicant’s tazkera records the review applicant as his father.  I accept that because the review applicant had raised the child in his family since he was a baby, the visa applicant was considered his child.  When the visa applicant was old enough to apply for his tazkera, the review applicant’s name was recorded as his father on his identity card.

24. The Tribunal accepts that the visa applicant is the son of the review applicant’s paternal uncle, and his parents are deceased.  The Tribunal accepts the visa applicant was raised by the review applicant and the primary visa applicant Razia Mohammadi as their child after the death of both his parents. The Tribunal also accepts that there is limited information before it regarding the deaths of the visa applicant’s parents such as medical records and death certificates. This is in line with the country information relating to death certificates in Afghanistan. Afghan citizens find it hard to obtain death certificates for many reasons including but not limited to insecurities, lack of capacities in the Afghan government, lack of records, corruption and many more. This is indicated in a 2016 report entitled Access to Tazkera and Other Civil Documentation in Afghanistan, researched and written by Samuel Hall and the Norwegian Refugee Council. Nonetheless, the Tribunal accepts that his parents are both deceased, and the visa applicant has grown up as part of the review applicant and primary visa applicant’s family since birth.

25. The delegate in the Department decision record states that under Islamic Sharia law, adoption of children is not allowed. The delegate states it is customary for paternal uncles or paternal grandfathers to assume caring arrangements for a child if their father dies or is missing (emphasis added).  The delegate states that the relative can apply for guardianship, known as ‘kafala’ through the courts, although this does not bestow any rights on the guardian.  The important point here is that it is recognised as a religious and legal responsibility for a paternal uncle to assume responsibility for an orphaned nephew.  This is what has occurred in this case.

26. In The Hazaras of Afghanistan, 1997, St Martin’s Press New York, Dr Moussavi discussed that Hazara society is defined first by family, then by clan and then by ethnic group. The author described the responsibility of a man whose brother died; it included that the man would be responsible for his brother’s children and would marry his deceased brother’s wife in an informal adoption practice. The Country Program Evaluation Government of the Traditional Islamic State of Afghanistan, UNICEF Report 2003-2005 recorded that the family networks that provided customary protection of children in Afghanistan were being eroded, but still existed.  The report recorded the customary laws based on principles of age, sex and community were subject to the authority of the father and the grandfather, then the uncles and elder brothers, and provided traditional protection for children through their extended families. These authorities support the proposition that in Afghanistan, the paternal uncle and his wife, would assume the care of a baby nephew whose parents had been killed, as part of customary practice.

27. The Tribunal is satisfied that the information before it establishes that in cultural Hazara society in Afghanistan the grandfathers, uncles and older brothers inherit the responsibilities of the deceased parents. The spouses of the male who inherits the responsibility for the child would also have the responsibility for the child.  The Tribunal is satisfied that it is customary in Afghanistan for orphaned children, or fatherless children, to be cared for by the family of their male relative.

28. The Tribunal is not prepared to accept the premise, as recorded in the Department decision record, that there is no religious, legal or social recognition of customary adoption in Afghanistan.  The Tribunal finds there is recognition of customary adoption by paternal family members in situations where the father of a child is deceased.

29. The Tribunal is satisfied that the arrangements of taking the visa applicant into the marital home of the review applicant and the primary visa applicant after his mother died at birth and his father dying due to medical complications two years later were arrangements made in accordance with the usual practice and recognised custom in the culture of the visa applicant, the primary visa applicant and the review applicant.

30. The Tribunal accepts the visa applicant has grown up in the family of the review applicant and the primary visa applicant since birth although his father died two years later. The child – parent relationships for the visa applicant are the relationships he has with the primary visa applicant and the review applicant, as his mother and father are both deceased. I am satisfied that the child – parent relationships the visa applicant has with the primary visa applicant and the review applicant are significantly stronger than any such relationship the visa applicant has with any other such person or persons.

31. Having considered the country information, the Tribunal is satisfied there is no legal avenue to formally adopt in Afghanistan and that formal adoption was not available.

32. The Tribunal is satisfied that the arrangements were made to take the visa applicant into the home of the review applicant and the primary visa applicant when the visa applicant was born and both parents are deceased.  The application for the partner visa was made when the visa applicant was 11 years old.  The Tribunal is satisfied that the arrangements to take care of the visa applicant as part of their family were made eleven years before the application for the visa and for the primary purpose of caring for the child in accordance with culture and recognised custom so that they cannot be construed as having been contrived to circumvent Australian migration requirements. The Tribunal is satisfied that the arrangements were not contrived to circumvent Australian migration requirements.

33. For all the above reasons, the Tribunal finds based on the evidence before it and information available, the visa applicant was customarily adopted within the meaning of r.1.04(2) by the review applicant and the primary visa applicant.

    Findings on the secondary visa criteria

34. The Tribunal is satisfied that the visa applicant was the dependent child of the primary visa applicant within the meaning of r.1.03 at the time of application as he was her adopted child, aged under 18 years and not engaged, partnered or married.  I am satisfied the visa applicant was a member of the primary visa applicant’s family unit at the time of application as her dependent child within the meaning of r.1.12(1)(b). 

35. I am satisfied at the time of decision that for the above reasons, the visa applicant is the adopted child of the primary visa applicant, and a member of her family unit.  I am satisfied, based on the information before me that the visa applicant is not married, engaged to be married, or partnered.  At the time of decision, the visa applicant is aged 20 years, having turned 20 years on 1 November 2021. I have considered , as the visa applicant is aged over 18 years, whether the visa applicant is dependent on the family head within the meaning of r.1.05A.

36. The Tribunal has applied the principles espoused in Al Naqi v MIAC [2007] FMCA 874 in assessing the financial support provided by the primary visa applicant Razia Mohhammadi to the visa applicant. I have assessed the evidence using a broad practical approach and accept that the financial support which is earned or provided by either the primary visa applicant or the review applicant, amounts to the same thing as they are a married couple providing support to a child they have raised as their adopted son since he was born in 2001.

37. The Tribunal has assessed the substantial period immediately before the time of decision as a period of 12 months.  This is a substantial period, and generally accepted as an appropriate period for assessment of dependency for the purposes of r.1.05A in the absence of other circumstances requiring a longer or shorter period.

38. The Tribunal accepts the information provided to it by the review applicant in written submissions, statutory declarations, additional documentary evidence and oral evidence, that at the time of decision the visa applicant resides alone in Pakistan, is unemployed and is a student. The Tribunal accepts the financial support provided to the visa applicant is provided by the review applicant and the primary visa applicant. I accept the visa applicant has no other source of income or financial support.  I accept that for the 12 months immediately prior to the time of decision, the financial support to meet the visa applicants’ expenses, including the costs of his rent, food and clothes, has been provided by the money sent or transferred from the review applicant and his wife, the primary visa applicant, to the visa applicant.

39. After the migration of the primary visa applicant and her three biological children to Australia in 2019, it is claimed that, on a temporary basis, the visa applicant was cared for by the review applicant’s sister, Shazia Mohammadi, who is married and has her own children. She has never supported the visa applicant financially. She was only looking after the visa applicant on a temporary basis for a short period of time and he is now living on his own and until he is reunited with the review applicant and primary visa applicant in Australia. The review applicant and primary visa applicant have not been able to migrate to Pakistan to be with the visa applicant because of the COVID-19 border restrictions.

1. Nonetheless, the review applicant and primary visa applicant have been in regular contact with the visa applicant over the phone and have been sending him money from Australia. They have provided evidence of financial support  in their written submission (annexure 8), regular telephone contact (annexure 11) and evidence in the forms of historical photos showing the visa applicant, the review applicant and primary applicant and their children together to the Department (previously) and with this submission to establish the claimed relationship between the parties and dependency on the visa applicant to the primary visa applicant and the review applicant.

2. The Tribunal is satisfied that at the time of decision in April 2022, and for a substantial period assessed as 12 months immediately before April 2022, the visa applicant was wholly or substantially reliant upon the primary visa applicant for financial support to meet his basic needs of food, clothing and shelter, and the visa applicant’s reliance upon the primary visa applicant is greater than his reliance on any other person or source of support, for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is satisfied that at the time of decision the visa applicant is dependent upon the primary visa applicant within the meaning of r.1.05A, and is a dependent child of the primary visa applicant within the meaning of r.1.03(b).  The Tribunal is satisfied that at the time of decision the visa applicant is a member of the family unit of the primary visa applicant, within the meaning of r.1.12(1)(b).

3. The visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21, and therefore the visa applicant meets the requirements of cl.309.311.

4. The visa applicant made a combined application with a person who satisfies the primary criteria, and subsequently the Minister found the visa applicant was not a member of the family unit of the person who satisfies the primary criteria. The person who satisfies the primary criteria has been granted the Subclass 309 visa and the Subclass 100 visa, and the Tribunal has found the visa applicant is a member of the family unit of the person who satisfies the primary criteria.  Therefore, the visa applicant meets the requirements of cl.309.321(b).

5. The Tribunal is satisfied the visa applicant satisfies cl.309.311 and cl.309.321.

6. 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

7. 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 Matheson
   Member