MOHAMMADI (Migration)

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.