Nazari (Migration)

[2021] AATA 4130

Nazari (Migration) [2021] AATA 4130 (21 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Nazari

VISA APPLICANT:  Mr Mubarak Ali

CASE NUMBER:  2102445

HOME AFFAIRS REFERENCE(S):          OSF2013/102603

MEMBER:Justin Meyer

DATE:21 October 2021

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations; and

·cl.309.321 of Schedule 2 to the Regulations.

Statement made on 21 October 2021 at 12:13pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – dependent child – customary adoption by an uncle – both parents are deceased – wholly or significantly financially reliant upon the primary visa applicant – substantial period – money transfers – family head – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.03, 1.04, 1.05, 1.12

CASES

Huang v MIMA [2007] FMCA 720
Vo v Minister for Home Affairs [2019] FCAFC 108

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 Home Affairs to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 October 2013. The delegate refused to grant the visa on 21 December 2020 on the basis that the applicant did not satisfy the requirements of cl 300.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 300.311 of Schedule 2 relevantly requires the applicant to 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 at the time of application.

3. Mr Ali Nazari, who is both the review applicant and sponsor (“the review applicant”), appeared before the Tribunal on 19 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mubarak Ali (“the secondary applicant”) and Ms Masooma Ali.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent.

5. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. The review applicant, visa applicant and the review applicant’s wife appeared by video before the Tribunal to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the applicant is a member of the family unit and satisfies cl 300.311 (i.e. whether the 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).

8. The issue in this case is whether, at the time of application on 9 June 2013, the visa applicant was a member of the family unit of Ms Masooma Ali. The information before the Tribunal is that Ms Ali has been granted a Subclass 309 visa. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.309.321 as well.

9. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

10. Regulation 1.12(1) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a dependent child of the family head or of their spouse or de facto partner;

    ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or

    ·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.

11. In this instance, the secondary visa applicant (“the secondary applicant”) is claiming to be the son of the primary visa applicant (who has already been granted a subclass 309 partner visa and the sponsor (“the review applicant”).

12. A person is the ‘dependent child of the family head or their spouse or de facto partner’ if they are the child or step-child of the family head or their spouse or de facto partner and meet the requisite dependency requirements.

13. The former version of r.1.12 provides:

    For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a) a spouse or de facto partner of the family head; or

    (b) a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)   does not have a spouse or de facto partner; and

    (ii) is usually resident in the family head’s household; and

    (iii) is dependent on the family head.

14. As the delegate noted, subregulations (2), (2A), (6) and (7) are not applicable in an application for a Subclass 309 visa.

15. The Tribunal notes that a number of the terms used in r.1.12 are defined in the Act or Regulations.

16. In this case, Ms Ali —not the review applicant—is the so-called ‘family head’. This is because cl.309.311 provides:

    The 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.

    Which paragraph in r.1.12(1) applies?

17. At the hearing, both the review applicant and the visa applicant gave consistent and credible oral evidence that they are father and adopted son and that the secondary applicant was orphaned following the death of his father in 1996 and his mother in 1997. His deceased biological father was the brother of the review applicant.    

18. There is evidence that r.1.12 (b) applies. There also is some evidence that r.1.12 (e) applies, although for these purposes it is unnecessary for the Tribunal to examine this provision. The remaining subsections are not applicable.

    At the time of application, was the visa applicant the child of the family head or of the review applicant (the spouse of the family head)? Are they now?

19. The term ‘child of a person’ is defined in s.5CA of the Act and s.5CA(1)(b) expressly provides that a child of a person may be an adopted child of the person within the meaning of the Act.

20. The term ‘adoption’ is defined in r.1.04. For present purposes, it is sufficient to note that the definition, as it was at the time of application, relevantly provided, in paragraph (2), that arrangements, other than formal adoption arrangements, that have been entered into outside Australia will be taken to be in the nature of adoption if:

    (a)  the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

    (b)  the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

    (c)   the Minister is satisfied that:

    (i)formal adoption …

    (A)was not available under the law of the place where the arrangements were made; or

    (B)was not reasonably practicable in the circumstances; and

    (ii)the arrangements have not been contrived to circumvent Australian migration requirements.

21. The review applicant submitted in writing (and I summarise):

    ·The secondary applicant is his adopted son and that his biological father was his older brother Hussein Ali who was killed by the Taliban in 1996 and his mother Fatimah died while giving birth to the secondary applicant in 1997.

    ·In 1996 the Taliban forcibly recruited his brother Hussain Ali to fight for them. After a week his body was found near the border of the Sponsor’s home village and a neighbouring Pashtun occupied village. At the time of his death the review applicant’s brother Hussain had a one-year-old child and his wife Fatima was pregnant with their second child (secondary Applicant). Since the death of Hussain Ali, his wife Fatima and their 1-year-old child became the responsibility of the review applicant’s family.

    ·Shortly after Hussain Ali’s death, the review applicant and the rest of his family including Fatimah and her child fled Afghanistan and illegally crossed the border into Pakistan. A few months after their arrival Fatima gave birth to Mubarak Ali, the secondary applicant. However, Fatimah died during the child’s delivery. Since then the review applicant’s nephews Mohammad Mahdi and Mubarak Ali, the secondary applicant, became the responsibility of the sponsor and his wife who raised the both as their own children.

    ·The adoption was never registered with any authority. He and his family were illegal immigrants in Pakistan and were never granted any form of residency status or documentation.

    ·Afghan refugees have been allowed to move freely, but have had few other rights.

    ·It is incorrect that Sharia law practiced in Afghanistan does not allow any form of adoption, whether it is formal or customary. In this instance it is arguable whether Afghan laws are applicable as the secondary applicant was born and raised in Pakistan and has never lived in Afghanistan.

    ·The issue is whether the adoption arrangements are consistent with recognised customs or cultural norms, not whether the adoption is in accordance with the ‘laws’ of the person’s home country.

    ·Customary adoption exists in Afghanistan.

    ·The Islamic form of ‘adoption’ is called ‘Kafâla’, which literally means sponsorship, but comes from the root word meaning ‘to feed’. It is best translated as ‘foster parenting’,‘Kafala’, or legal fostering, is the promise to undertake without payment the upkeep, education and protection of a minor, in the same way as a father would do for his son.

    ·A Migration Review Tribunal (MRT) country advice report on Pakistan confirms that in that country kafala defines a system of alternative care that could be considered a form of customary adoption. It provides a model of alternative care that – unlike legal adoption – preserves the blood ties between the child and its biological parents – an acceptable practice under Islam

    ·The secondary applicant has always viewed the review applicant and the primary applicant as his parents. He was not aware that he had been adopted until recently, when his visa application was refused and the review applicant had no choice but to reveal the truth about his biological parents.

    ·Since his arrival in Australia in 2010 and throughout his interactions with the Department of Home Affairs, the review applicant has always referred to the secondary applicant as his son. Departmental records show that in his protection application the review applicant has mentioned the secondary applicant as his own son. All of the secondary Applicant ’s documentation, including his Taskera and his educational documents mention the review applicant as his father.

    ·It was in the interest of transparency and comprehensiveness that he mentioned in his partner visa that the secondary applicant was in fact (customarily) adopted since birth, even though he has always considered him to be his son.

    ·The secondary applicant has provided evidence of his cohabitation with the primary applicant and the rest of the family in the form of an affidavit from their landlord who attests that the secondary applicant has lived at the rental property with the primary applicant and her children since 2012. The review applicant and the secondary applicant were not able to locate the landlords from their previous places of residence and hence have not been able to provide further documentation in that regard.

    ·The review applicant provided various family photos of his visits to Pakistan as well as screenshots of video calls to Pakistan, in all of which the secondary Applicant is present with the rest of the family.

    ·The review applicant has financially supported the secondary applicant and provided for his daily needs throughout his life. This has continued since the review applicant arrived in Australia in 2010. The review applicant has provided evidence of remittance sent to Pakistan. It should be noted that until the arrival of the primary Applicant in Australia, the financial transactions are in the name of the primary applicant on the documentary evidence provided. Since the arrival of the primary Applicant and her children in Australia in April 2021 all subsequent transactions are in the name of the secondary applicant.

    ·The relationship between the secondary applicant and the primary applicant/ the review applicant has been recognised by the rest of the family and friends within the community. The statutory declaration by Mr. Asmatullah Sultani states that since the time he has known the review applicant in Australia he has always referred to the secondary applicant as his own son. He describes when in 2014 he was preparing to visit his family in Pakistan, the review applicant had asked him to take a smart phone that he had purchased for his son (the secondary Applicant). Mr Sultani describes meeting the secondary applicant in Quetta Pakistan at his and the primary applicant’s home where they all lived as a family. He notes that he referred to the primary applicant as his mother. In fact Mr Sultani explains the he was also unaware that the secondary applicant was not the Sponsor’s biological son until he found out that the primary applicant and her other two children arrived in Australia without the secondary applicant after which the review applicant explained the circumstances to him.

    ·The review applicant and the primary applicant have expressed great concerns for the health and mental wellbeing of the secondary applicant. Since the revelation regarding his biological parents and the fact that he could not accompany the primary applicant and his siblings to Australia, the secondary applicant has reportedly fallen into deep depression and anxiety. He is now living by himself in Pakistan, in circumstances where the review applicant and the primary applicant can only provide financial and moral support from a distance.

    ·The review applicant is especially concerned as the secondary applicant is still an illegal immigrant in Pakistan and has no other family he can rely on. His concerns have intensified in light of the recent events in Afghanistan and the influx of Afghan refugees who have entered Quetta Pakistan. As a result, the crime rate has increased exponentially and the lack of safety and security in Quetta has had a great impact on the mental health of the whole family, who have concerns about secondary applicant’s safety and wellbeing.

    ·The review applicant and the primary applicant are committed to continue supporting the secondary applicant into the future and provide him the best opportunities within their means. They wish for the secondary applicant to continue with his studies and find employment in a safe and secure environment.

    ·The delegate noted in the decision that no evidence has been provided in support of the claimed death of the secondary applicant Mubarak Ali’s biological parents and that they were not satisfied that the secondary applicant’s parents are deceased.

    ·The secondary applicant’s mother passed away at the time of his birth. Due to their status as illegal immigrants who were undocumented at the time, there is no official death certificate from the relevant issuing office. According to the review applicant’s statutory declaration, the secondary applicant’s mother Fatimah, could not be taken to a public hospital as she was undocumented. She was instead taken to a private clinic for the delivery of her baby instead. Hence there is no documentation from a hospital either.

    ·However, a certificate obtained from the Hazara Qabristan (cemetery) confirms that Fatimah, the spouse of Hussain Ali died on 31 May 1997 and her burial took place in the “Hazara Graveyard” on the same day. This graveyard is specifically for and managed by the Hazara community in Quetta, hence they were able to make a request for documentation confirming the burial site of the secondary Applicant’s mother.

    ·In addition, the review applicant has provided images of the primary and the secondary applicant at Fatimah’s gravesite. The inscription on her headstone includes (in addition to Islamic holy writings in Arabic letters) the following text in Persian and English letters:

    The late Fatimah, the spouse of the late Hussein Ali. Date of death: 31/05/1997

    ·These images were reportedly taken after the secondary applicant had been informed about his biological parents. Previously when the family visited Fatimah’s gravesite, the children including the secondary applicant were under the impression that it was the gravesite of a relative.

    ·Given the circumstances of applicant and their family, who having escaped a war-torn country as undocumented illegal immigrants, without the necessary means for any form of registration in the host country (Pakistan), reasonable steps have been taken to provide documentary evidence. Given that Fatimah’s death occurred over 24 years ago, it would not be reasonable to expect any official documentation evidencing her death, especially as no official records of the family exists in Pakistan. The documentary and written evidence provided should be viewed as sufficient as it is in line with the general circumstances of a family with a background such as that of the review applicant and the secondary applicant.

    ·In 1996 the secondary applicant’s father Hussain Ali was forcibly taken away by the Taliban, from their village of Dahmardah Gulzar in Jaghori Ghazni Afghanistan. He was taken to fight for the Taliban and after about a week his body was found by a shepherd near the border of their home village and one of the neighbouring Pashtun villages.

    ·Around the time of Hussain Ali’s death Afghanistan was at the height of an ongoing civil war. It was in 1996 that the Taliban took control of most of Afghanistan, but even before the Taliban takeover, there was no effective government in control of Afghanistan in the years proceeding these events. The review applicant states that at that time, no one in his family (apart from his father who held a pre-war issued Taskera) held identity documentation, especially so as they lived in a rural village, is consistent with available country information.

    ·The review applicant stated that his brother Hussain was buried in an unmarked grave in the village. No one in those turbulent times had the means to have a proper gravesite with headstones.

    ·He stated that shortly after the death of his brother he along with the rest of his family including Fatimah and her one-year old boy Mohammad Mehdi, who were now under the care of the review applicant’s family fled Afghanistan. They crossed the border into Pakistan on the back of trucks carrying vegetables. Since they fled Afghanistan in 1996, no one from the review applicant’s family has ever returned to their home village due to security reasons. It was only in 2013 when the primary and secondary applicant had to travel to Ghazni in Afghanistan (not their village) in order to apply for their Taskeras and later in 2017 when they applied for their passports.

    ·The lack of proper documentation among Afghan asylum seekers is a well-documented fact. Due to the structurally weak oversight of government administration in Afghanistan many Afghan nationals were unable to obtain documents up to the standards of those in other countries. This is particularly true for the Hazara ethnic minority group to which the review applicant and his family belong. The Hazara ethnic minority has a long history of persecution due to their Shia faith. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.

    ·According to Norwegian Refugee Council study, “Decades of civil war have damaged government institutions, disrupted regular functions and caused destruction and loss of civil registry records. The frequent change in government and political leadership has also resulted in changes to applicable legislation, creating a range of different civil documents that coexist to this day. The problems facing Afghans around civil documentation from a legal perspective are twofold. Firstly, administrative practices are discriminatory against displaced persons and women. Secondly, a number of problems exist around the interpretation and application of the laws, including lack of awareness and limited civil service institutions, as well as capacity gaps at the issuer level.

    ·The same is true for all documentation including death certificates. According to a 1997 report by the Danish Immigration Services Death certificates are issued by the Interior Ministry's local offices. Such certificates are, however, only issued for deaths in hospital. In this case the review applicant’s brother was killed by the Taliban during the civil war. Hence obtaining a death certificate could not have been viable in such circumstances.

    ·Despite these circumstances the review applicant has taken all possible steps in attempting to secure documentation evidencing his brother’s death. He was advised by the issuing office, that in order to issue a death certificate, they will require a copy of the deceased person’s Taskera. The review applicant is unable to obtain a Taskera for his brother who died approximately 25 years ago, at a time when no one in their family held identity documentation.

    ·Despite having no other familial connection to their home village, the review applicant has made attempts to make contact with some of the older residents of the village who may have had some knowledge of his family and the death of his brother. However, this has proven to be a challenging task although the review applicant has indicated that he will continue to get some kind of documentary evidence from the local elders who may be able to attest to the death of his brother.

    ·There is no other way to provide documentary evidence of his brother’s death given the lack of official records.

    ·The review applicant genuine has made attempts to collate information in support of his claims and the extraordinary circumstances of a country like Afghanistan that has been entangled in decades of war.

    ·The applicants’ circumstances satisfy the other requirements for recognition as customary adoption arrangements, namely that there is no other person who has a child-parent relationship with the secondary applicant; formal adoption was not reasonably practicable and there is no evidence the arrangements were contrived to circumvent Australian migration requirements.

    ·In the alternative, the secondary applicant also meets definition of relative under the regulations as they were applicable at the time of application [discussion proceeded about whether the applicant could be seen as a relative as a nephew of the review applicant].

    The parties’ evidence and an evaluation

1. The review applicant, the secondary applicant and the primary visa applicant all gave oral evidence and were broadly consistent with each other and with the written submission.

2. The Tribunal finds that the secondary applicant is the son of the review applicant and the primary visa applicant. He was customarily adopted by them after the death of his biological father (the review applicant’s brother) and his mother in 1996 and 1997 respectively.

3. The Tribunal finds there is probative, corroborative and uncontradicted evidence that both biological parents died, as outlined in the submission. The Tribunal tested the accounts of the various witnesses about the mother’s grave, the cause of her death, the father’s passing as a forced Hazara Taliban fighter and the parties moving to Pakistan for safety. There are photographs, statements and documents showing this account to be based on fact. 

4. The Tribunal concludes that customary adoption has occurred in this case. A variety of information has been considered on adoption in Islamic societies and in Pakistan and Afghanistan in particular. It is fair to conclude that while formal adoption does not typically occur as it would for example in western countries, less formal and more customary adoption can occur.

5. The Australian Concise Oxford Dictionary defines adoption as being:

   Take (a person) into a relationship, esp. another’s child as one’s own.

6. This has occurred in this case.

7. The Tribunal has independently accessed a recent departmental Q&A report:

   Standard Q&A Report Page 1 of 5 Afghanistan: 20201120092356 – Customary adoption Requesting Organisation Decision-maker Date of Reqest Date of Report 25/11/2020 on the issue: “Is customary adoption common practice in Afghanistan?” and “Do families typically customarily adopt their siblings' children when their siblings go missing or pass away?”

8. This report indicates that in Afghanistan, customary adoption and guardianship of children under Islamic law is practiced. Depending on the order of succession, siblings will customarily adopt their siblings’ children if their siblings are incapable, go missing or die.

9. The parties are, or were, Afghanis residing in Pakistan and would tend to follow Afghani norms. In any event Pakistani norms are similar. The earlier mentioned Migration Review Tribunal (MRT) country advice report on Pakistan confirms that in that country kafala defines a system of alternative care that could be considered a form of customary adoption is relevant here (Country Advice Pakistan Pakistan – PAK36043 – Adoption – Customary adoption – kafala – Guardians and Wards Act 1890 28 January 2010).

10. Having had the advantage of detailed written submissions, and of having heard the broadly consistent and credible oral evidence of the review applicant and the visa applicant about the nature and duration of the care arrangements at the hearing, the Tribunal finds that the child-parent relationship between the secondary visa applicant (the adoptee) and the review applicant and primary visa applicant (the adoptors) is significantly closer than any such relationship between the secondary visa applicant and any other person or persons. The Tribunal finds that both parties took on the role of adoptive parents to the secondary visa applicant. The Tribunal is satisfied that the requirement in r.1.04(2)(b) is met.

11. As the Tribunal found the all witnesses to be credible, the Tribunal has no cause to believe that the claimed customary adoption arrangements have been contrived to circumvent Australian migration requirements. The Tribunal is satisfied that the requirement in r.1.04(2)(c)(ii) is met.

12. Accordingly, the Tribunal finds that, both at the time of application on and at the time of this decision, the visa applicant was the child of both the review applicant and the secondary applicant by way of customary adoption arrangements.

13. The Tribunal is satisfied that, at the time of application, the visa applicant was under 18 years of age, it is unnecessary for the Tribunal to assess whether, at that time, the visa applicant met the other aspects of the definition of ‘dependent child’ in r.1.03.

14. However, as the evidence before the Tribunal is that, at the time of this decision, the visa applicant has turned 18 — indeed, that he is 24 years of age (born on 31 May 1997) — it is necessary for the Tribunal to assess whether the visa applicant meets the other aspects of the definition of ‘dependent child’ at the time of this decision. There is no evidence before the Tribunal that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. Rather, the consistent claim that has been made is that the visa applicant does not work because he studies. Accordingly, it is necessary for the Tribunal to assess whether, at the time of this decision, the secondary visa applicant is dependent on the primary applicant or on the review applicant for the purpose of the definition of ‘dependent child’.

    At the time of this decision, is the visa applicant dependent on the primary applicant (the family head) or on the review applicant (the spouse of the family head)?

    The law

15. Regulation 1.03 provides that ‘dependent’ has the meaning given by r.1.05A.

16. The term ‘dependent’ is defined in r.1.05A. At the time of application and at the time of this decision, this relevantly provides:

    (1)  … a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter[.]

17. The Full Court of the Federal Court of Australia considered the application of r.1.05A in Vo v Minister for Home Affairs.[1] The Court made the following observation:

    the definition stated in reg 1.05A has both a temporal and qualitative element. The temporal element is that period being ‘a substantial period immediately before’ the time ‘when it is necessary to establish whether the first person is dependent on the other person’. The qualitative element is the degree of dependency or reliance. Therefore, in order to satisfy the clause, the person claiming to be a dependent must show that during the relevant period they were wholly or substantially reliant on the first person. Further, it must be shown that at the time when it is necessary to establish dependency, the reliance on the first person was greater than the reliance on any other person.[2]

    [1] [2019] FCAFC 108.

    [2] At [20].

18. There is no definition in the Regulations of what constitutes a ‘substantial period’. However, in the context in which ‘substantial’ is used in r.1.05A, it has been held that it should be understood to mean a lengthy period.[3]

    8Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in r.1.03. His Honour stated, at [44], that a ‘reasonable period’—which was the term used in that context—need not be lengthy.

19. The Court in Vo remarked:

    The requirement that the person be substantially reliant on the other person should be construed, in the context of para (a)(ii) and the subject matter of reg 1.05A in dealing with dependence, as requiring a meaningful degree of financial reliance on a person to an extent that the person might properly be described as being dependent on that person (as distinct from simply receiving some assistance from that person) for basic needs. There must be a degree of confidence or trust in the support and it must be sufficient that without the extent of support provided by the other person the dependent person would be in a position where their overall basic need for food, clothing and shelter though aided by others would not be met.[4]

    Assessment

    [4] At [17].

20. All of the witnesses gave consistent oral evidence that, at the time of the hearing, the secondary applicant was not working and that he had never worked.

21. The evidence before the Tribunal is that the visa applicant has been studying English and completing his secondary education. There are certificates and confirmations of studies on file. His later secondary education is plausible given that school for Hazaras in Quetta has been piecemeal and has been established relatively recently.

22. The review applicant told the Tribunal that, the he had sent money to the secondary applicant as evidenced by receipts (including recent ones), and both parties explained what this meant. He has been working as a process worker and sent in the order of AUD1000 per month.  The secondary applicant confirmed this. He is not married or engaged nor had he ever been. There are numerous remittances on file from his father, paid to him over a period of years.

23. Having considered all the evidence that is before it, the Tribunal finds that, for a substantial period before the date of this decision and until the date of this decision, the secondary applicant was and continues to be substantially reliant on the review applicant who provides for his basic needs for food, clothing and shelter. The Tribunal finds that the temporal element within r.1.05A(1)(a)(i) is met.

24. With respect to the qualitative element within r.1.05A(1)(a)(ii), the Tribunal notes the following remarks made by the Court in Vo.

    Substantial reliance may be placed upon a number of people each of whom may provide some financial support in order to meet basic needs for food, clothing and shelter. By the terms of para (a)(ii), reg 1.05A directs attention to identifying the person who provides the greatest amount of such support. It is only that person who is a person upon whom a person may be dependent for the purposes of the Migration Regulations (where the regulation uses the term ‘dependent’).[5]

    [5] At [18].

25. The Tribunal is mindful that, in this case, financial support for the visa applicant has been provided by a couple yet the Regulations require identification of a single person on whom the visa applicant has been ‘dependent’. The Tribunal is mindful that the review applicant has been the sole income earner for the family. In the circumstances, the Tribunal is satisfied that the visa applicant’s reliance on the review applicant for financial support is greater than his reliance on any other source of support. The Tribunal finds that the qualitative element within r.1.05A(1)(a)(ii) is met.

26. The Tribunal is satisfied that, at the time of this decision, the visa applicant meets all the requirements for a ‘dependent child’ of the review applicant (being the spouse of the family head) for the purpose of r.1.03.

    CONCLUSION

27. The Tribunal finds that, at the time of application r.1.12(1)(b) was met and, accordingly, the Tribunal is satisfied that cl.309.311 is met.

28. Similarly, the Tribunal finds that, at the time of this decision, r.1.12(1)(b) is met and accordingly, the Tribunal is satisfied that cl.309.321(a) is met, and thus cl.309.321 is met.

29. 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

30. 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 of Schedule 2 to the Regulations; and

    ·cl.309.321 of Schedule 2 to the Regulations.

    Justin Meyer
    Member

    1.12     Member of the family unit

    (1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (d)     (Omitted 02/04/2005)

    (e)      a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)does not have a spouse or de facto partner; and

    (ii)is usually resident in the family head’s household; and

    (iii)is dependent on the family head.

    …