1709462 (Migration)

[2019] AATA 4080

1709462 (Migration) [2019] AATA 4080 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709462

MEMBER:Rosa Gagliardi

DATE:5 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.212 of Schedule 2 to the Regulations;

·cl.802.213 of Schedule 2 to the Regulations; and

·cl.802.221 of Schedule 2 to the Regulations.

Statement made on 05 July 2019 at 2:11pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant satisfies the definition of dependent child – applicant  is reliant on the sponsor for financial support –  adoption was lawful – adoption is in the best interests of the child – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5C, 65

Migration Regulations 1994, rr 1.03, 1.05, 1.14, Schedule 2, cls 802.212, 802.213, 802.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 and Border Protection on 12 April 2017 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 for the visa on 26 March 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.802.212.

4. The delegate refused to grant the visa on the basis that cl.802.212 was not met because it was not accepted that the applicant is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen, as required.

5. The applicant’s adoptive parents appeared before the Tribunal on 1 April 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 Tribunal had previously made a decision in this case finding that the applicant met cl.802.213.  However, as the Department points out in its decision, the Tribunal did not at that stage make a decision addressing cl.802.212(1)(a) and (2). 

10. Cl.802.212 reads:

    (1)      The applicant:

    (a)      is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

    (b)      subject to subclause (2), has not turned 25.

    (1A)      If the applicant is a step-child of the person mentioned in paragraph (1)(a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.

    (2)      Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

11. The Tribunal is therefore required to have regard to whether the applicant is deemed to meet the criteria of a ‘dependent child’ as defined in regulation 1.03.  The regulations state in terms of dependent child:

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)      has not turned 18; or

    (b)      has turned 18 and:

    (i)      is dependent on that person; or

    (ii)      is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

12.   Dependent has the meaning given by regulation 1.05A which states:

[1.05A] (1)      Subject to subregulation (2), 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; or

(b)      the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

The applicant’s circumstances

1. The applicant’s adoptive parents were married in Jakarta, Indonesia [in] November 2006.  They had wanted to conceive naturally but were unable and turned to IVF.  The adoptive mother did not respond well to IVF treatment, however, and discontinued the process.  In 2013 the applicant’s adoptive parents heard about a fertility specialist in Indonesia who had successfully treated infertile couples and travelled to Indonesia in May 2014 to see the relevant medical professional, but they were still not able to conceive a child. 

2. In visiting family and friends in Indonesia the applicant’s adoptive parents met a family friend who was temporarily taking care of a male baby born out of wedlock (the applicant).  The applicant was born on [date].  The birth mother had no financial means of supporting the baby and his natural father had deserted the mother and child.  The birth mother’s parents also disapproved of the child having been born out of wedlock and did not accept any caring responsibilities for the child.  The sponsor’s family friend who was temporarily looking after the child was concerned, however, as she had three children of her own and she was not in a financial position to continue to care for the child. 

   15.     The sponsor’s family friend suggested that the applicant’s adoptive parents adopt the applicant.  They met the birth mother of the child who was not against the adoption as she could not cope with raising the child on her own and a Deed of Release was signed by her.  The adoption of the child by Mr [A] and [Ms B] effectuated by [Court 1] [in] October 2014.

3. This application was made on 26 March 2015.  From the evidence before the Tribunal it is clear that since adoption the child has been cared for and had its basic needs for food, clothing and shelter wholly met by its adoptive parents.  In this regard the Tribunal considers that there is some value in setting out the (translated) comments made by the by the [Court 1] in its decree regarding the adoption:

   …That from the beginning [Ms C] wanted to give up her child to the Petitioners for the well-being of the child so that he would have parental father and mother figures.

   In consideration that based on the cross-examination of the Court it is evident that the desire of the Petitioners to adopt the child gaining for him Legal Status and that a strong spiritual bond has developed between [applicant name] (the applicant changed name later to current name) such that an integral family unit exists in their day to day lives.

   In consideration that in accordance with the Provisions of Article 12 Regulation No.4, 1979 regarding the Welfare of children and Article 39 Regulation Number 23, 2002
   regarding the Protection of Children, the adoption of a child is undertaken by giving top priority welfare of the child or what is best for the child;
   …….

   In consideration that based on the facts of law that from the age of 1 (one) year the child was given up by the birth mother of [applicant name] to the Petitioners until the present.  This is besides being well cared for, brought up and reared as their own child, and also there has developed a strong spiritual bond between the adoptive child and the Petitioners such that an integral family unit exists in their day to day lives;

   In consideration, that based on documentary proof provided by the Petitioners, it is evident that the Petitioners have already fulfilled the conditions as adoptive parents among them being the fact that the Petitioners are husband and wife, married for approximately eight years, healthy in body and spirit, upstanding and with economic and social means and have already brought up the prospective adoptive child since the age of 1 (one) year and the adoption of the child is in the best interests of the child for his welfare and protection…

4. A substantial period is considered to be approximately a year before the making of the application.  From the court documents the Tribunal is satisfied that the applicant had been cared for by the adoptive parents for a substantial period by his adoptive parents.  Given the child was very young when he was adopted in any event, the adoptive parents had less of an opportunity to have been able to care for the child for extended years.

5. Having sighted the evidence the Tribunal is satisfied that the applicant is and has been for a substantial period immediately before that time, wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter; and that his reliance on the sponsor (his adoptive parent) is greater than any reliance on any other person, or source of support, for financial support to meet the applicant’s basic needs for food, clothing and shelter.  The child has now been living with the adoptive parents in Australia for some time, having commenced school and been accepted by the community as being the child of the adoptive parents. 

6. The Tribunal is therefore satisfied that the applicant satisfies the definition of dependent child set out in Regulation 1.03.  As such, the Tribunal is satisfied that the applicant meets the requirements of cl.802.212.

7. In its decision the Department also had concerns that the Tribunal had not addressed whether the applicant is deemed to meet the criteria of Regulation 1.14 (definition of parent and child relationship) and questioned the validity of the adoption.

8. Child of a person is defined under section 5CA of the Migration Act which states:

   (1)  Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

   (a)  someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

   (b)  someone who is an adopted child of the person within the meaning of this Act.

   (2)  The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

   (3)  Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

23.  The applicant is purporting to be the adopted child of the sponsor.  Adoption is defined under the Regulations as:

(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.

1. The Tribunal is satisfied that the applicant’s relationship with the applicant and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons and it is not clear that the Department was at heart even questioning this matter.  It’s central concern was the validity of the adoption, being, whether the applicant satisfied “(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”. 

2. The issue was that it appeared that the adoption had not been made in accordance with Indonesian adoption laws and that the adoptive parents should go through the process of adoption again.  Official advice had been provided from the Ministry of Social Affairs (KEMENSOS), Indonesia, that the processing of the adoption was undertaken via the domestic mechanism but did not include approval from the social affairs agency as stated in Government Regulation 54, 2007 regarding procedures for adoption, meaning that they had to reprocess the adoption.

3. The adoptive parents at hearing emphasised that they trusted their solicitor in Indonesia to ensure that they underwent all the necessary procedures.  Now they felt they were being unfairly penalised due to no fault of their own.  Indeed the parents attempted to approach the Department of Social Services in order to recommence the process and have submitted that Department’s advice, dated 10 August 2017:

   1.    That Mr [A] (husband) and Mrs [B] (wife), known as the applicants, have carried out the process of adoption of the child, [directly] (from the biological mother) in the [Court 1] in the year 2014 which is made lawful with the existence of Court Ruling No 430/Pdt.P/2014/PN.Jkt Sel.

   2.    That in the process of the child’s adoption, the said applicants did not deal with the Department of Social Services of the Province of Jakarta such that there was no recommendation for adoption by this Department at  the time of the ruling of the[Court 1].

   3.    Usually (Tribunal emphasis) the Department of Social Services of the Province of Jakarta issues a recommendation for adoption before the judicial process takes place, however, given that the applicants had already instigated the legal proceedings, a recommendation for adoption was not required (Tribunal emphasis).  However, Mr [A] had reported the process of adoption and had surrendered a dossier of the adoption process to the Department of Social Services of the Province of Jakarta [in] April 2017.

4. The Tribunal presumes that a recommendation from the Department of Social Services, Indonesia, is usually provided to demonstrate that the adoptive parents are fit and proper persons to adopt and that it is in the best interests of the child to be adopted.  From the Departmental file it appears that the parties had submitted to the[Court 1], the dossier containing inquiries relating to the lack of a criminal history and other relevant matters pertinent to their capacity to adopt the child and what was in the child’s best interest (Folio 90 Tribunal file).

5. From the reading of the adoption decree made by the court it would appear that the court placed itself in the shoes of the Department of Social Services to conduct the assessment and recommendation about the parents’ suitability to adopt and whether it would be in the best interests of the child:

   In consideration, that from the facts of law presented in court as set out above, looking carefully at the background of the child who will become the adoptive child of the Petitioners on the one hand and on the other hand…the situation of the Petitioners with regard to health, character, work and income together with the motivation and genuineness or good faith of the Petitioners as is mentioned above, then the court is of the opinion that by the adoption of the child which will be carried about by the said Petitioners, then the welfare and the future of the child will be better and more assured;

   In consideration, based on the argument and its analysis outlined above the request of the Petitioners is well founded in law and because of that it is fitting that the request of the Petitioners be granted.

6. It could be argued, therefore, that the court had the authority to make such findings about the character and position of the adoptive parents without referring to the Department of Social Services, based on the dossier submitted to the court by the adoptive parents.  If the court was prepared to proceed without referral to any recommendation by the Department of Social Services, then it was clearly a power bestowed upon it.  To argue that the adoption was not valid on the basis of a process that was, in the words of the Department of Social Services, usually (meaning not always) undertaken by adoptive parents, would require a superior court to find that the initial adoption was unlawful; of which there is no evidence. 

7. The Tribunal notes from the advice by the Department of Social Services above, that in any event a recommendation was not required in this case as the applicants had already instigated the legal proceedings, possibly acknowledging the power invested in the courts to make their own assessment about the suitability of the parents to adopt and that it was in the best interests of the child to be adopted.  Importantly, the Department of Social Services is not highlighting any concern with the adoption or the suitability of it taking place on the basis of the dossier they were privy to.  It would have been open to the Department of Social Services to raise any concerns it might have had, even if they were provided retrospective of the adoption.

8. The Tribunal considers that if it is the Department of Social Services that is required to be consulted about adoptions, and that Department is saying that in this case a recommendation was not required, then it is not for the Tribunal to go behind the Department’s statements.

1. The Tribunal concurs with its earlier findings that overseas adoption is a serious matter and that the movement of children ought to be carefully considered.  As the Tribunal has also previously commented, it has no doubt that in this case, the adoptive parents are well-intentioned and have been found by the [Court 1] to be suitable parents and that the adoption is in the best interests of the child.  As such, for the reasons argued above, the Tribunal finds that the adoption was lawful and was made in accordance with the laws of another country, being Indonesia.

2. While not the overriding consideration, the Tribunal does also have to consider the best interests of the child.  The High Court held in the case of Minister for Immigration and Ethnic Affairs v An Hin Teoh that the wording of the Convention on the Rights of the Child requires only that the best interests of children be treated as “a” primary consideration, and not as “the” primary consideration.  What this means, under Teoh, is that the best interests of children must be given “first importance”, but it does not mean that the best interests of children necessarily and by itself outweighs all other considerations.  It remains possible that other considerations may, in any given case, outweigh the best interests of children.

3. From the evidence it is clear that the applicant is now a part of his adoptive family.  He has lived with his adoptive family for five years and it is evident to the Tribunal that the adoptive parents are providing the applicant with a loving and secure environment.  The Tribunal cannot see how it would be in the best interests of the applicant to be returned to Indonesia where he would literally have no one to care for him at the age of 6 (5 of which have been spent in Australia with his adoptive parents). 

4. The adoptive parents have stated that they did consider returning to Indonesia to live with the child if the applicant is not granted residency but now they also have their own biological child, an Australian citizen; and a younger sister to the applicant, who would also be affected by living in a country that would not afford her the same opportunities as in Australia.  Nor is it conceivable that  the family could be separated as the applicant has also developed a bond with his sister.

5. For the reasons provided above, the Tribunal is satisfied that the applicant meets cl 802.212 and cl.802.213 at the time of application and that he continues to meet these at the time of decision.  The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

6. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

   ·cl.802.212 of Schedule 2 to the Regulations;

   ·cl.802.213 of Schedule 2 to the Regulations; and

   ·cl.802.221 of Schedule 2 to the Regulations.

   Rosa Gagliardi
   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.