1506211 (Migration)

[2015] AATA 3956

1506211 (Migration) [2015] AATA 3956 (23 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Alynna Jane Kennedy

CASE NUMBER:  1506211

DIBP REFERENCE(S):  CLF2015/10585

MEMBER:Hugh Sanderson

DATE:23 December 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 23 December 2015 at 11:31am

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 29 April, 2015 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 20 February, 2015. 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 on the basis that cl.802.213(1)(b) was not met because the adoptive parents had not resided overseas for the 12 months prior to adoption and the delegate was not satisfied there were compelling or compassionate circumstances for not applying that criteria as required in cl.802.213(5)(b).

   Background

5. The applicant (hereinafter “Alynna”) is a citizen of the Philippines and is currently 19 years old. Her brother, Alexander Kennedy (hereinafter “Alexander”), has made an application identical to that of the applicant. He is currently 20 years old. His application was refused at the same time and for the same reason as the applicant. His case is subject to a separate tribunal review application no.1506257. When referring to both Alynna and Alexander in this decision they will be referred to as “the children”.

6. The sponsor of the children is their biological maternal grandmother, Janet Kennedy. She was born in the Philippines and is currently 61 years old. She is an Australian citizen and has provided a copy of her Australian passport. She was granted a Spouse visa after she married Donald Kennedy who was born in Australia and is an Australian citizen. He is currently 79 years old. She claimed she travelled to Australia in 2000 after the death of her husband when Alynna was 4 years old and Alexander was 5 years old. She has resided in Australia since then.

7. The sponsor adopted the children and their brother, Alex, by way of an application filed on 10 January, 2007 in the Philippines. An order was made by the Regional Trial Court on 20 October, 2008 approving of the adoption. That order became final on 10 December 2008.

8. In the sponsorship forms, the sponsor stated that she had been living since December 2008 in Wongarbon near Dubbo in Australia.

9. The sponsor’s movement records indicate that she has travelled out of Australia as follows:

   ·From 6 May, 2006 to 9 June, 2006 (1 month and 3 days);

   ·From 27 November, 2006 to 1 June, 2007 (6 months and 4 days);

   ·From 13 November, 2007 to 20 February, 2008 (3 months and 7 days);

   ·From 30 May, 2009 to 17 June, 2009 (18 days);

   ·From 18 November, 2010 to 31 December, 2010 (1 month and 13 days);

   ·From 30 October, 2012 to 29 November, 2012 (30 days);

   ·From 23 May, 2013 to 7 June, 2013 (15 days);

   ·From 22 September, 2014 to 9 October, 2014 (17 days); and

   ·From 25 September, 2015 to 24 October, 2015 (29 days).

10. The movement records to Donald Kennedy, the adoptive father, indicate that he had travelled out of Australia as follows:

    ·From 13 September, 2004 to 17 October, 2004 (1 month and 4 days);

    ·From 10 February, 2005 to 18 March, 2005 (1 month and 8 days); and

    ·From 21 March, 2007 to 1 May, 2007 (1 month and 10 days).

11. The sponsor stated that Alynna was the daughter of her own daughter and Alexander was the son of her own son. She stated that after her moving to Australia in 2000 they had both resided with her eldest son and his family. She said that Alex, who she had also adopted, was still living with her eldest son.

12. The delegate who considered the application noted the following issues:

    ·The only basis which had been put to meet the criteria for the grant of the visa was the criteria in cl.802.213(5);

    ·The adoptive parents of the children were usually resident in Australia and there is insufficient evidence to suggest that they intended to reside overseas for the 12 months prior to the adoptions taking place;

    ·As the parties had not been residing overseas for more than 12 months when the adoption took place they did not meet the criteria in cl.802.213(5)(b)(i); and

    ·There were no compelling or compassionate circumstances why the 12 month requirement should not apply.

13. Based on these findings, the delegate concluded that the applicant did not meet the criteria in cl.802.213 and refused the application.

14. Statements were provided to the tribunal from the children where the following was claimed:

    ·When Alexander and Alynna were born their mother and father were a very young age and they were always cared for by her grandmother (the sponsor);

    ·Their parents separated the year after Alynna was born, but then reconciled and they had another child, Alex, but they separated again and all the children were left with the sponsor;

    ·The sponsor’s husband died on 3 September, 2000 and as the sponsor could not cope she decided to travel to Australia for a holiday, leaving the children with her eldest child Alex Jander Ablang;

    ·While in Australia the sponsor met Donald Kennedy and married him and continued to live with him in Australia;

    ·The sponsor provided financial support and clothing and shelter from Australia;

    ·The sponsor and Mr Kennedy decided to adopt the children in 2007 and stayed in the Philippines for seven months while doing the adoption process;

    ·The sponsor had to return to Australia so that she could continue to financially support the children;

    ·The sponsor divorced Mr Kennedy in 2014;

    ·The sponsor encouraged the children to apply for Student visas and they are both now students in Brisbane and the sponsor is planning to move from where she is now living to be with them in Brisbane.

    The hearing

15. The applicants appeared before the tribunal on 21 December, 2015 to give evidence and present arguments. The tribunal also received oral evidence from the sponsor. 

16. Alexander acknowledged that the sponsor had not been residing overseas for more than 12 months at the time of the adoption and therefore there needed to be compelling or compassionate circumstances why the requirement should not apply.

17. Alexander said that he had seen his biological mother shortly before he left the Philippines to say goodbye, but had not seen her for many years before that. He said that she had remarried and her husband did not want to have anything to do with the children from any former relationship of his biological mother.

18. Alexander said that throughout the time that he was living in the Philippines he was living with his uncle, the eldest son of the sponsor. He said that his uncle was involved in politics and was also the manager of a security agency business. He said that when he and Alynna were living in the Philippines they were living in the home of their uncle which was in a large compound. Living in the home was their uncle, his wife, their son and also his brother. He said that he had a large number of other relatives living in the Philippines.

19. Alexander said that after arriving in Australia he spent three days with the sponsor and then went to Brisbane and lived with his aunt. He said that he was studying in Brisbane until about seven months ago when he started living in Peak Hill. In Brisbane he was living with his aunt and Alynna. He said that Alynna also stopped studying about seven months ago they had since been living together in Peak Hill.

20. Alexander said that the sponsor travelled to the Philippines each year, staying for about a month. He said that she could not stay in the Philippines any longer because she needed to return to Australia to work to be able to send money to them.

21. The tribunal invited Alexander to provide any information as to any compelling or compassionate circumstances why the requirement that the sponsor be residing overseas for more than 12 months at the time of the adoption should not apply. Alexander said that he wanted to stay in Australia. He said that he was looking after his adoptive father and he wanted to have a chance to give something back to the sponsor.

22. Alynna stated that after arriving in Australia she was living in Brisbane with her aunt and brother while she was studying. She said that she stopped studying in June 2015 and moved to Peak Hill.

23. She said that she had not seen her biological mother for four or five years and cannot recall ever seeing her father. She said that all her time that she had lived in the Philippines she was living with her uncle. She said that he was a counsellor in government. She described him as being quite well off financially in the Philippines.

24. The tribunal invited Alynna to provide any compelling or compassionate circumstances why the 12 month requirement should not be applied. She said that the sponsor had worked to do in Australia which was why she could not be in the Philippines for time required.

25. The sponsor gave evidence in support of the application. She said that she had recently returned to the Philippines, staying in her own home which she did every time she returned there. She said that she sometimes stays with her sister in Manila. She said that she does not stay with her son with whom the children were living in the Philippines.

26. The tribunal asked the applicant why she adopted her grandchildren in 2007. The applicant said that when her husband died in 2000 he told her that she should look after the children. She said that she had wanted to sponsor the children when she was given the Spouse visa, but she was not allowed to do so. She said that she was told she should adopt the children, and she did, but was not aware that she had to be in the Philippines for 12 months. She said that they did not take any steps in 2007 to sponsor the children as she didn’t have any idea what to do and there was no money. She said that they just didn’t know about it.

27. The tribunal raised with the children and the sponsor a number of concerns with regard to the application and whether there were compelling or compassionate circumstances for not applying the 12 month requirement. This included the following:

    ·The sponsor had been residing primarily in Australia since 2000 and the primary carer for the children had always been that uncle;

    ·There was no evidence to support the claims that the sponsor had been sending money to the children or their uncle on their behalf to provide for their support between 2000 and 2013;

    ·After arriving in Australia the children did not live with the sponsor, but went to Brisbane to study and live with her aunt in that city;

    ·Since adopting the children, the sponsor had spent less than one month each year travelling to the Philippines and it did not appear that she even was living with them; and

    ·The children are adult and independent of the sponsor as evidenced by them living in Brisbane.

28. Alexander said that Filipino children are different as they stay with an adult for a long time and that even when they were living in Brisbane they were living with an aunt. It was claimed that although the sponsor did not spend much physical time with the children they would talk to each other by phone. It was also claimed that even though there was no evidence of the financial support, that the sponsor owned the property where the uncle lived meant that there was this support. It was claimed that it was because the sponsor needed to work to support the children that she was not able to spend any time with them.

29. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The issue in the present case is whether there are compelling or compassionate circumstances so that the requirement that when the adoption took place the adoptive parent had been residing overseas for more than 12 months should not apply.

    Adoption criteria

31. 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.

32. It is not in dispute that when the adoption took place the sponsor (and her husband at the time) had not been residing overseas for more than 12 months. As such, the applicants did not meet the criteria in cl.802.213(5)(b)(i). The tribunal has considered whether there are compelling or compassionate circumstances why the subparagraph should not apply to the children.

33. The sponsor left the Philippines in 2000 and has resided in Australia primarily since that date. The children, at that time, were aged four and five years old. The children have, since that date, been primarily cared for by their uncle. They have lived with him in his home with his family. The sponsor has returned to the Philippines for holidays, however, has not spent any extended time with the children or caring for them. The longest time that she spent was between 27 November, 2006 and 1 June, 2007, prior to the adoptions taking place.

34. Since the adoption order was made, the sponsor returned to the Philippines almost every year with the longest period in which she stayed in the Philippines being only one month and two weeks. All other stays had been less than one month. It was claimed that the children would speak to the sponsor regular by telephone. It was also claimed that the sponsor regularly sent financial support for the children.

35. There is limited documentation to substantiate the claims of any financial support being provided by the sponsor to the children. Evidence of the transfer money is only dated from 7 January, 2013. There is no information which would show that it any time prior to this the sponsor was making regular contributions to the financial support of the children. Further, there is no information which would show that the sponsor has been in regular telephone communication. There is nothing which would indicate that the relationship between the children and the sponsor would be considered anything different to that of a child’s relationship with a grandmother who was living overseas.

36. As indicated above, the children have, at least since 2000, been living with their uncle who has been the primary caregiver, including after the children were formally adopted by the sponsor in 2007. As was acknowledged by the children, they have a close relationship with their uncle who has been caring for them for almost all the lives.

37. After arriving in Australia, the children were living with their aunt in Brisbane whilst the sponsor remained living in Peak Hill in New South Wales.

38. The tribunal is not satisfied that anything in the relationship between either of the children or the sponsor is such that it provides a compelling or compassionate circumstance not applying the 12 month residence requirement.

39. The children were formally adopted by the sponsor in 2007. No action was then taken to sponsor the children after that time until the current application. No adequate explanation was given by any party as to why this was so. At the time, the children were only 12 and 11 years old and, as such, it is not surprising that the children were not able to provide any explanation as to the failure by the sponsor to have taken any steps at that time to sponsor them to live with her in Australia if the relationship between the sponsor and the children was such that it would provide a compelling or compassionate circumstance for not applying the 12 month requirement. It is clear the process of the adoption had no emotional or physical effect on the lives of the children.

40. The sponsor’s explanation was that she “did not have any idea what to do at the time”. She then said that she did not have any money to do it at the time. It was claimed that the sponsor did not reside in the Philippines for more than 12 months at the time of the adoption because she was not aware of this requirement and she had to return to Australia to work to financially support them. No financial documentation from that time has been provided to the tribunal. It was claimed that the sponsor owned property in the Philippines and still owns a property where she stays when she returns for her holidays there. After the children were adopted, the sponsor continued to travel to the Philippines almost every year for a holiday.

41. The tribunal is not satisfied that the financial circumstances of the sponsor at the time of the adoption or at any other time provides a compelling or compassionate circumstance not applying the 12 month requirement. The tribunal is not satisfied that any adequate explanation has been provided as to why the sponsor was not able to reside in the Philippines for 12 months at the time of the adoption whilst her husband remained living and working in Australia, as he did for most of the time that the sponsor spent in the Philippines or that the circumstances at the time provide a compelling or compassionate circumstance for not applying the requirement.

42. The children are now 20 and 19 years old. After arriving in Australia, they both commenced living in Brisbane with an aunt and studying in that city while the sponsor remains living in Peak Hill. The fact that both children after arriving in Australia did not live with the sponsor indicates that they have the degree of independence which indicate they not dependent upon the sponsor and accordingly is not a compelling or compassionate circumstance not applying the 12 month requirement. Although living with an aunt in Brisbane, the children have numerous relatives who continue to reside in the Philippines, including their uncle, with whom they could live with. Both children ceased any study in about June 2015 and are not students at this time.

43. The children have numerous relatives who continue to live in the Philippines. Their uncle, whom they were living with from 2000 until they departed the Philippines in 2014, continues to live in the same home in which he shared with the children as well as the other family members in that home. There is nothing to indicate that the children would not be welcomed back into their uncle’s home. It was acknowledged by the children that they both had a good relationship with their uncle, which is not surprising in light of the fact that he has been a primary carer for almost all their lives. There is nothing to indicate that their uncle would not continue to provide a home and care for the children as he has been doing for almost all their lives. The tribunal is not satisfied that the circumstances of the children in the Philippines provide a compelling or compassionate circumstance for not applying the 12 month requirement.

44. The children have claimed that they are now both looking after their adoptive father, Donald Kennedy. There is no information before the tribunal is to any medical requirements of Mr Kennedy or reason why both the children are required to care for him. It is noted that the sponsor has divorced Mr Kennedy and is no longer living with him. The tribunal is not satisfied that the claim that the children are caring for their adoptive father provides a compelling reason for not applying the 12 month requirement.

1. The tribunal has considered all of the circumstances of both children individually and cumulatively and whether they provide compelling or compassionate circumstances why the 12 month requirement should not apply to either or both of the children. As set out above, the tribunal is not satisfied that any individual circumstance would provide compelling or compassionate circumstances why the 12 month requirement should not apply. The children have been in the primary care of their uncle since at least 2000 when the sponsor moved to Australia and where she has lived primarily since then. The sponsor has had only limited contact with the children in the 15 years she has been residing in Australia. The longest period she spent in the Philippines was six months commencing November 2006. Although spending three months in November 2007 in the Philippines, her travel to the Philippines since then has been restricted to annual visits of usually less than one month duration. When considered on an individual basis at the time of the adoption and generally, the tribunal is not satisfied that these and the other claims are set out above provide a compelling or compassionate circumstance why the 12 month requirement should not apply. The tribunal has considered all the circumstances cumulatively. When considered together, the tribunal is not satisfied they provide compelling or compassionate circumstances for not applying the 12 month requirement.

2. Accordingly, the tribunal finds that when the applicant’s adoption took place, the adoptive parent (the sponsor) had not been residing overseas for more than 12 months and therefore the criteria in cl.802.213(5)(b)(i) is not met. Further, the tribunal is not satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant and therefore the applicant does not meet the criteria in cl.802.213(5)(b)(ii).

3. There is no information before the tribunal that the applicant meets the criteria in cl.802.213(2), (3), or (4). Accordingly, the applicant fails to meet the criteria in cl.802.213(1)(b).

4. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There is no information before the tribunal that the applicant would meet the criteria for the grant of any other visa.

   DECISION

5. The tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

   Hugh Sanderson
   Member

   
   

   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.