1415619 (Migration)

[2015] AATA 3743

1415619 (Migration) [2015] AATA 3743 (11 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Graham Harold Williams

CASE NUMBER:  1415619

DIBP REFERENCE(S):  CLF2014/55738

MEMBER:Helena Claringbold

DATE:11 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 11 November 2015 at 12:56pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is a review of a visa refusal made on 8 September 2014 not to grant an Other Family (Residence) (Class BU) Remaining Relative 835 visa.

2. Mr Graham Harold Williams applied for the visa on 9 April 2014 on the basis that he is a remaining relative of an Australian relative.

3. Mr Williams appeared before the Tribunal on 5 November 2015 and provided oral evidence. The Tribunal received evidence from Ms Williams and two witnesses.  He was represented by his migration agent.

4. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212. There is no evidence or claims made against the other Subclasses.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether Mr Williams is a remaining relative of an Australian relative.

6. The Tribunal has taken into consideration all the evidence in the Department’s file CLF2014/55738, folios numbered 1-214, and the Tribunal file 1415619, folios numbered 1-71 and the evidence at the Tribunal hearing.

   Is the applicant a remaining relative of an Australian relative?

7. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

8. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

9. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the applicant is an adopted child.

10. The visa application was made on the basis that Mr Williams is the remaining relative of Ms Faranisese Williams, who is claimed to be the applicant’s Australian relative. In this case Mr Williams claims that Williams is his adoptive mother.   His biological mother Ms Vasemaca Vutoro died on 3 December 2012 (refer: D1 f4). Mr Williams’s biological father is not disclosed on Mr Williams’s birth certificate or in the evidence before the Tribunal. Ms Williams and Ms Vutoro were raised by their uncle and regarded themselves as sisters (refer: D1 f191).

    Has the applicant been adopted?

11. Regulation 1.04 provides the definition for adoption:

    (1)    A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    (a)    formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
    (b)    formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or
    (c)    other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2)     For the purposes of paragraph (1)(c), arrangements are 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 of the kind referred to in paragraph (1)(b):

    (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.

12. Mr Williams is claiming to be the adopted child of Ms Williams.  Mr Williams provided evidence that on 1 September 2012 a formal adoption was lodged in Fiji.  The application was dismissed in 2012 as the applicants didn’t appear in court.  Mr William stated that their non-appearance was due to the death of his biological mother on 3 December 2012 (refer: D1 f4). 

13. There is no evidence before the Tribunal that Mr Williams has been formally adopted by Ms Williams, therefore the Tribunal cannot be satisfied that Ms Williams has formally adopted Mr Williams.  Accordingly, the Tribunal is not satisfied that regulation 1.04(1)(a) or regulation 1.04(1)(b) are met.

    Has the applicant been customarily adopted by the sponsor?

14. DFAT Fiji Country Report of 14 April 2015 states that;

    Informal Adoptions

    5.51 Informal adoptions, in which children are supported by family members other than their parents or extended family members or friends, are relatively common in Fiji. Infants from young or unwed mothers may be given up because of social and community issues, and children from large families may be given up because of necessity. There are some indications that this cultural practice is now  being exploited: civil society organisations have raised the possibility of trafficking of children for adoption from remote Pacific Island Communities. Concern has also been raised over the vulnerability of children who may not have had their births registered in remote communities (rural and atoll) and their lack of visibility by the authorities.

15. Mr Williams and Ms Williams told the Tribunal that Mr Williams was customary adopted by Ms Williams one day after his birth.   Ms Williams stated that she made a commitment to Ms Vutoro that she would support her unborn son.  At the time of Mr Williams’s birth Ms Williams was visiting Fiji however returned to Australia where she resided permanently.  Mr Williams lived with Ms Vutoro, his biological mother on a permanent basis from his birth on 4 October 1992 until Ms Vutoro’s death on 3 December 2012. 

16. Ms Vutoro provided evidence in an affidavit for the adoption process and stated that when she was discharged from hospital after giving birth to Mr Williams “since that date my contributions to the welfare of the infant was to be there for him and provide tender, love and care while all support in all form was provided by the applicants”.

17. Ms Williams provided evidence that Ms Vutoro and Mr Williams lived in a home she owned. The Tribunal was told that Ms Williams didn’t have ownership documents because the home was built in their village and ownership documents do not exist. 

18. Ms Williams claims to have financially supported Mr Williams and his mother in Fiji.  She provided bank statements in support of these claims.  The statements details financial transactions in Fiji, however, do not provide description of the sender or recipient or the purpose of the transactions (refer: f106-f174).   The Tribunal was told that Ms Williams provided Ms Vutoro will a bank card which allowed her to withdraw money and pay for items as they were required.   Mr Williams said that he continues to have this facility and the provision of financial support provided by Ms Williams.

19. Ms Williams said that she took on the responsibilities of parenthood for Mr Williams including providing accommodation, providing for his living expenses, deciding on his schooling and activities, arranging villagers to assist Mr Williams and his mother and travelling to Fiji to visit Mr Williams.

20. Additionally evidence provided to the Tribunal by Mr Williams is that until 2012 Ms Williams travelled to Fiji once or twice a year and Mr Williams, visited Australia on different occasions living with Ms Williams and her family in Australia. Throughout Mr Williams’s childhood and teenage years he lived permanently with his mother in Fiji.   Ms Vutoro was responsible Mr Williams’s welfare on a day to day basis.  She provided the environment where he lived, cooked, cleaned and cared for him.  She was recorded on his schooling documents as his mother and would meet with teachers as was necessary.  She tended to him when he was ill and insured he received medical attention. Neighbours and school friends considered their relationship to be that of mother and son.

21. The Tribunal on the evidence accepts that informal adoptions occur in Fiji.  In considering the evidence about the relationship between Mr Williams, his biological mother and Ms Williams, the Tribunal accepts that Ms Williams acted as benefactor for Mr Williams. The Tribunal is not satisfied that Mr Williams relationship with Ms Williams was significantly closer than his relationship with Ms Vutoto his biological mother because on the evidence, prior to his mother’s death on 3 December 2012, Mr Williams primarily resided with his mother in Fiji and she cared for him as a mother providing and assuming the role of a parent until her death.  In July 2012, Ms Vutoro stated that her contribution toward Mr Williams’s welfare was to provide tender love and care. The evidence when considered individually and as a whole indicates that Mr Williams’s biological mother cared for him on a day to day basis and that they lived together in Fiji. Ms Williams resided with her husband and family in Australia. When considering Ms Williams claims that she supported Mr Williams financially and took on parental responsibilities since one day after Mr Williams’s birth.  The Tribunal accepts that this may be the case however the Tribunal is not satisfied that the child-parent relationship between Mr Williams and Ms Williams was significantly closer than his relationship with Ms Vutoro, his biological mother, having regard to the nature and duration of his relationship with Ms Vutoro.  The Tribunal is not satisfied that the requirements of regulation 1.04(2)(a)(b) are met.

    Is formal adoption available?

22. The evidence before the Tribunal is that on 1 September 2012, Ms Williams applied to formally adopt Mr Williams through a formal adoption process in Fiji.  Evidence also provides that the application was dismissed in 2012 as the applicants didn’t appear in court.  At the time of the adoption application, Mr Williams was nineteen years and seven months.

23. Ms Williams provided evidence that she did not begin a formal adoption process because she didn’t want to upset Mr Williams’s biological mother.  Additionally she stated that difficulties due to a coup in Fiji prevented formal adoption.  The Tribunal accepts that Fiji experienced a coup in 2000.  Additionally accepts, that during that time the circumstances may have been problematic to an adoption process.  A Refugee Review Tribunal research paper dated 10 July 2007, informs that Fiji introduced legal adoption for the first time in 1945-1946 while still a colonial territory of the British Commonwealth. The Tribunal is satisfied that outside the time of the coup, a formal legal process for adoption was and is available in Fiji.  The Tribunal is not satisfied that Regulation 1.04(2)(c)(i)(A) and Regulation 1.04 (2)(c)(i)(B) are met.  As a result Regulation 1.04(1)(c) is not met.

24. The Tribunal is not satisfied that Mr Williams is or has been either formally or informally adopted by Ms Williams.  The Tribunal is not satisfied that Ms Williams is a parent, brother, sister, step-parent, step-brother or step sister of Mr Williams. Accordingly r.1.15(1)(a) is not met.

25. For the reasons set out above, the Tribunal is not satisfied that Mr Williams is the remaining relative of Ms Williams, an Australian Relative at the time of application and at the time of decision for the purposes of cl.835.212 and cl.835.221.

26. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Helena Claringbold
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     Remaining relative

    (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

    (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

    (b)the other person is usually resident in Australia; and

    (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

    (i)usually resident in Australia; and

    (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

    (d)if the applicant is a child who:

    (i) has not turned 18; and

    (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

    at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

    (2)In this regulation:

    near relative, in relation to an applicant, means a person who is:

    (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

    (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).