1419896 (Migration)

[2016] AATA 3174

1419896 (Migration) [2016] AATA 3174 (1 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Carrisha Mamata

CASE NUMBER:  1419896

REFERENCE(S):  CLF2013/310811

MEMBER:Michelle Grau

DATE:1 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for  visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass  visa:

·cl. 802.212, 802.213, 802.215 and 802.221 of Schedule 2 to the Migration Regulations

Statement made on 01 February 2016 at 10:04am

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 5 December 2014 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 17 December 2013 . At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.213.

4. The delegate refused to grant the visa met because she was not satisfied the applicant met r.1.04(2)(b) and (c) and therefore did not meet cl.802.213. The delegate was not satisfied r.1.04(2) (b) was met because the delegate was not satisfied the child parent relationship between the adoptee and any other person was significantly closer than any such relationship between the adoptee and other person. The delegate was of the view that because the child had also lived with her grandmother and biological parents between 2006 – 2013, when the adoptive parents were in Australia and therefore did not meet clause r.1.04(2)(b). The delegate was also of the view that because the formal legal adoption did not take place when the Adoption Act was enacted in 2004 but was done in 2013, the applicant did not meet r. 1.04(2)(c), which requires that formal adoption was not available under the law of the place where adoption arrangements were made.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act. At review, the tribunal considered country information about Solomon Island adoptions and further submissions provided by the adoptive parents.

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 the present case is whether the applicant meets cl. 802.213 and, in particular r.1.04, which defines adoption.

   Adoption criteria

8. If the Australian citizen, permanent visa holder or eligible New Zealand citizen of whom the applicant must be a dependent child under cl.802.212(1) is an adoptive parent of the applicant, the applicant must have been under 18 when the adoption took place, and must meet one of a number of alternative requirements relating to the nature and circumstances of the adoption and the status of the adoptive parent at the time of application: cl.802.213, extracted in the attachment to this decision.

9. The evidence before the tribunal is that the applicant’s biological parents were not married, but dating, and separated shortly after her birth in 1997. The applicant was under the care of her aunt, Philister, since she was 3 months old until mid-2005 when Philister migrated to Australia with her Australian partner. The child was cared for by her grandmother for a year and the by her biological mother in the Solomon Islands who wanted her to help look after younger siblings. The adoptive parents continued to provide financial support for the applicant and visited the applicant and kept in contact. In 2012 the applicant ran away from her biological mother and the adoptive parents brought the applicant to Australia on a visitor visa in January 2013 and they have continued to care for her in Australia. 

10. On 13 September 2013 the adoptive parents obtained a Solomon Islands High Court order of legal recognition of customary adoption.  The order recognised the applicant’s customary adoption under s28 of the Adoption Act.[1]

    [1] >

    The tribunal accepts the applicant was born in 1997 and under 18 at the time of adoption. The tribunal accepts the applicant’s aunt, her adoptive mother, took on the parental role when the applicant was a baby and has continued to care for her.  In 2001 the adoptive father and sponsor began to care for applicant as he had formed a spousal relationship with the adoptive mother.

11. The tribunal considers the applicant was customarily adopted in the Solomon Islands with Kiribati customs as practiced by Solomon Islanders of Kiribati region by the adoptive mother. The tribunal has had regard to country information about customary adoption practices and law in the Solomon Islands which notes the practice was common amongst extended family.[2] The applicant was adopted by her aunt. Further, according to country information despite the UK Adoption Act it was not a good fit with local circumstances, and customary adoption, was and is widespread and well accepted practice. Further, in many cases the court refused to apply the Act as it was wholly irrelevant to the Solomon Islands and applicable to UK residents.[3]  The tribunal accepts formal adoption was not reasonably practicable and customary adoption was commonly practiced and well accepted practice.

    [2] Corrin J and Foote E, “Failing to Adopt a New Approach: The Law of Adoption in Solomon Islands”, International Survey of Family Law 2014, p.435

    [3] Ibid p.443 and 444.

12. Based on the applicant’s circumstances and the country information, the tribunal finds the applicant was customarily adopted in accordance with the laws of the Solomon Islands when she was a baby by the adoptive mother and at that time formal adoption was not available under the laws of the Solomon Islands. The tribunal finds r.1.04(2)(a) is met.

13. The tribunal considers the 2013 court order recognising that arrangement provides further evidence that the applicant was customarily adopted. It also confirms the sponsor is recognised as the adoptive father.

14. Later the Adoption Act 2004 came into force in 2008 in the Solomon Islands. Section 28 of the Act is an avoidance of doubt section. It notes the provisions of the Act do not affect any adoption made in accordance with the prevailing customs in Solomon Islands prior to or after the commencement of the Act. It was evident from the 2013 Court order that the applicant’s prior customary adoption was recognised and was done in accordance with Kiribati customs as practiced by Solomon Islanders of Kiribati region. The tribunal considers the 2013 Court order further reinforces the tribunal’s view that the applicant was properly customarily adopted in accordance with prevailing customs. Further it is a formal adoption order recognising the customary adoption by Brian Christie and Philister Tekeri Christie, the adoptive parents. Having regard to the circumstances of the applicant’s birth, upbringing and customary adoption, the country information, and  the 2013 formal recognition of the customary adoption the tribunal finds the applicant was customarily adopted when a baby by the aunt and this was formally recognised under the Adoption Act 2004 in 2013.

15. The tribunal considers the delegate has misconstrued r.1.04(2)(c) as the requirement relates to an adoptee being adopted in accordance with customary practices when there was no formal process. It does not require that as soon as formal adoption is available or the law is changed that a person needs to be formally adopted.    When the applicant was customarily adopted in 1997 this was in accord with customary practices and the Solomon Islands adoption Act did not come into effect until 2008. While there may have been formal arrangements also under the 1958 UK Act, it is evident from country information and case law regarding that UK Act that customary adoptions were common, coexisted and prevailed. Based on the country information and the applicant circumstances, the tribunal finds the applicant meets r.1.04(2)(c)(i).

16. Further, the tribunal does not accept that the arrangements were contrived to circumvent Australian migration requirements as the applicant has been adopted by the adoptive mother almost since birth and the adoptive father since she was four years old and the parental relationship has continued.  This is not a newly created or contrived relationship or arrangement.  The tribunal finds the applicant meets r.104(2)(c )(ii).

17. The tribunal also finds that applicant meets 1.04(2)(b) as the tribunal considers the adoptive mother had looked after the child from 3 months to 7 years physically and after that provided financial support and continued to keep in contact when she came to Australia. The adoptive father, having met and formed a spousal relationship with the adoptive mother, cared for the applicant since she was four years old as well. While the applicant also lived with her grandmother and then her biological mother for a few years, this was because the adoptive parents had moved to Australia and were trying to make arrangements. The adoptive parents continued to provide the financial support and regular contact.  The tribunal accepts the applicant ran away from her biological mother in October 2012. Further the applicant has again lived with the adoptive parents since January 2013 in Australia. The tribunal does not accept the applicant has a closer relationship with any other person. The tribunal finds having regard to the nature and duration of adoption arrangements and the child parent relationship between the applicant and the adoptive mother that it is significantly closer than any such relationship between the applicant and  any other person. The tribunal therefore finds r.1.04(2)(b) is met. 

18. The tribunal finds the requirements of r.1.04 are met.

19. The tribunal finds the applicant is the adopted child of the sponsor Brian Christie and his wife, Philister Tekeri Christie.  Based on the movement records and correspondence on file, including the letter from the sponsor at review, the tribunal finds the sponsor is an Australian citizen and his co-habiting spouse, Philister is an Australian permanent resident. The tribunal accepts the applicant has not turned 18 years and is wholly and substantially in the daily care and control of the adoptive mother, Philister and father, Brian and that she is their dependent child. The tribunal finds the applicant satisfies cl. 802.212.

    Clause 802.213

20. The Tribunal must also consider whether the applicant meets the requirements of cl.802.213, which is met if the Australian citizen mentioned in subclause 802.212(1), who in this instance is the sponsor’s wife, Philister, meets the requirements of subclause 802.213(2), (3), (4) or (5).

21. The tribunal finds the Philister was not an Australian citizen, permanent visa holder or NZ citizen at the time of adoption, but subsequently became one on 14 October 2008. The tribunal finds the applicant meets cl. 802.213(3).

22. Accordingly, cl.802.213 is met.

23. The tribunal also accepts that cl. 802.215(b) is met as the applicant is sponsored by her adoptive father, who is over 18 years, and is an Australian citizen. Further, the tribunal accepts that the sponsor’s cohabiting spouse, Philister is the person mentioned in cl.802.212(1)(a). The applicant therefore meets cl. 802.215.

24. As the applicant had not turned 18 at the time of application and she continues to satisfy cl.802.212 at time of decision, she satisfies cl. 802.221.

25. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

26. The Tribunal remits the applications for  visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass  visa:

    ·Cl.802.212, 802.213, 802.215 and 802.221 of Schedule 2 to the Migration Regulations.

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Schedule 2, Part 802

    …

    802.213(1)     If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:

    (a)was under 18 when the adoption took place; and

    (b)meets the requirements of subclause (2), (3), (4) or (5).

    (2)The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.

    (3)The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.

    (4)The applicant meets the requirements of this subclause if:

    (a)the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

    (b)before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent's spouse or de facto partner as suitable adoptive parents, for the applicant.

    (5)The applicant meets the requirements of this subclause if:

    (a)the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and

    (b)either:

    (i)when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or

    (ii)the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

    (c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    (d)the adoptive parent has, or the adoptive parent and the adoptive parent's spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.