1728443 (Migration)

[2019] AATA 3147

1728443 (Migration) [2019] AATA 3147 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728443

MEMBER:Jane Marquard

DATE:5 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2019 at 1:47pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – adoptive parents residing overseas over 12 months before adoption – adoption since last application for a substantive visa – compelling or compassionate grounds to waive requirements – Convention of the Rights of the Child – best interests of the child – Ministerial Intervention referral – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CA, 48, 65, 351
Migration Regulations 1994 (Cth), rr 1.04, 1.14A; Schedule 2, cls 802.211, 802.212, 802.213

CASES

Anani v MIMAC [2013] FCCA 1140
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 31 October 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 1 November 2016. At the time of application, the Child (Residence) (Class BT) visa contained two Subclasses, 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.802.211 and 802.213.

   BACKGROUND

4. The applicant is aged [age]. She was born in the Philippines on [date], but is now living in Australia. She arrived in Australia [in] October 2010.

5. She was adopted in the Philippines by [Mr] and [Ms A] [in] July 2009. [Ms A] is her biological aunt. A Filipino adoption order from [Court 1] dated [in] July 2009 has been provided. It was noted in a Decision attached to the Adoption Order that the applicant’s biological mother had agreed that her sister would adopt the child before the child was born. The Court considered the financial situation of the [adoptive parents], and their ability to provide a loving, secure and healthy environment for the child. The Court also noted that the child had bonded with the adoptive parents as they had been caring for her since birth.

6. After the adoption order the applicant arrived in Australia [in] October 2010 on a [temporary] visa, which ceased [in] July 2011.

7. She departed Australia [in] January 2011 and returned [later in] January 2011. She departed Australia again [in] April 2011 and returned [later in] April 2011.

8. She applied for a Child (subclass 802) visa on 23 August 2011 as the dependent adopted child of [Ms A]. The application was refused on 19 July 2012 because [Ms A] had not resided overseas for 12 months prior to the adoption.

9. On 23 November 2012 she applied for a protection visa, which was refused on 2 January 2013.

10. [In] May 2016 the Supreme Court of NSW made an adoption order in relation to the applicant.

11. The applicant then lodged this application for a Child (Subclass 802) visa on 1 November 2016 as the dependent adopted child of [Mr A].

    DECISION OF THE DEPARTMENT

12. The delegate refused to grant the visa on the basis that Section 48 applied to the applicant. Section 48 provides that a non-citizen in the migration zone who does not hold a substantive visa and since last entering Australia was refused a visa, may only apply for certain visas, including this Child (Residence) Class BT visa. The Department found that the applicant does not hold a substantive visa (a bridging visa or criminal justice visa), and had visa applications refused on 19 July 2012 and 2 January 2013. Therefore, section 48 applied.

13. The Department found that as section 48 applied, Clause 802.211 was applicable. Clause 802.211 requires that at the time of application, if the applicant is a person to whom section 48 applies:

    (a)Has not been refused a visa…; and

    (b)Since last applying for a substantive visa has become a dependent child of the Australian citizen.

14. As Section 48 applies, the Department then considered whether since last applying for a substantive visa, she had become a dependent child of the Australian citizen. The Department found that she last applied for a substantive visa on 23 November 2012. The Department found that she is considered to have been a dependent child of the sponsor, who has held joint custody of the child, since [July] 2009. This was because of an adoption order issued by [Court 1] dated [in] July 2009.

15. The Department found therefore that she had not become a dependent child of the sponsor since last applying for a substantive visa, rather, she had become a dependent child on [a date in] July 2009, which was prior to the last application for a substantive visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE BY THE TRIBUNAL

16. The applicant appeared before the Tribunal on 10 December 2018 with her adoptive parents, to give evidence and present arguments.

17. After consideration of the evidence provided to the Department and Tribunal and the relevant law, the Tribunal has concluded that the decision under review should be affirmed. Given the unique and exceptional circumstances of the case, however the Tribunal has referred the matter to the Minister for consideration under section 351 of the Act.

    Clause 802.212 – dependent child criteria

18. The first issue in this case is whether since last applying for a substantive visa on 23 November 2012, the applicant has become a dependent child. The Tribunal has thus considered when the applicant became a ‘dependent child’.

19. As discussed earlier, the Department found that the applicant was a dependent child of the sponsor, who had held joint custody of the child, since [a date in] July 2009. This was because of an adoption order issued by the Philippines [Court 1] dated [that day].

20. The Tribunal has considered first when the applicant became a child of [Mr and Ms A], and the law indicates that she became a child when she was adopted by them.

21. An ‘adopted child’, as defined under the migration legislation, is a ‘child of a person’ in s.5CA(1)(b) of the Act. ‘Adoption’ is defined in r.1.04 of the Regulations. For the purposes of s.5CA(2), r.1.14A provides that a child that is formally adopted in accordance with r.1.04(1)(a) and (b) is the child of the adoptive parents and that any previous child-parent relationship is no longer recognised.

22. The key requirements contained in r.1.04 to define when someone is an adopted child are:

• the adopter must have assumed a parental role in relation to the adoptee. Presumably this took place after the adoption in the Philippines [in] July 2009.

• the role must be assumed before the adoptee attained 18 years of age. The applicant is still under the age of 18.

• the role must be assumed under certain arrangements, namely:

  a.formal adoption arrangements under Australian (or state/territory) law;

  b.formal adoption arrangements under foreign law, where the adoption results in the legal recognition of the adopter(s) as the parent(s), in place of the previously recognised parents; or

  c.certain other arrangements entered into outside Australia that are ‘in the nature of adoption’ (referred to as ‘customary adoption’).

1. The applicant’s mother argued that the applicant had become the dependent child since [July] 2009 and the adoptive child since [May] 2016 when the adoption order was made by the Supreme Court in Australia. She argued that this meant that the applicant met clause 802.211 as the Australian order was made subsequent to the last application for a substantive visa.

2. However, although orders were made in the Supreme Court of NSW [in] May 2016, there is no doubt that the parental role was assumed [in] July 2009 when formal adoption arrangements were made under Philippines law where the adoption resulted in the legal recognition of the adopters as parents in place of the previously recognised parents. The Department made enquiries of [Court 1] and ascertained that the orders were genuine and the adoption lawful. The child was only [age], and the adoptive parents took on the full parental roles and responsibilities.

3. Thus, the applicant became a child of the parents [in] July 2009, and also a ‘dependent child’ as she was aged under 18 (cl. 802.212).

4. These matters were put to the sponsor, [Mr A] for comment. He said that the Department found that Clause 802.211 was not met, but it ‘does not make sense’, as the applicant has been a dependent child since then as well. In his view, the delegate failed to consider events after the refusal, and he wished the Tribunal to consider the Order in 2016 by the Supreme Court in NSW. The applicant became their legally adopted daughter in 2016 and is eligible for citizenship. Asked if they had obtained legal advice in relation to the visa, he said that they were advised by the Department to apply for a visa before applying for citizenship. He said there should not be any difference between the words ‘has become’ and ‘has been’ a dependent child. In his view the words ‘since last applying for a substantive visa’ should be interpreted broadly to include ‘ has been’ a dependent child since last applying for a  substantive visa.

5. The Tribunal has considered carefully the sponsor’s submissions on how this provision should be interpreted. The ordinary meaning of the word ‘since’ is ‘then, thereupon, immediately afterwards’[1].  This means that the applicant must have become a dependent child then, thereupon or immediately after the application for the substantive visa, 23 November 2012.  However, as set out above the Tribunal is satisfied that the applicant became a dependent child [in] July 2009, which was prior to the last application for a substantive visa.

   [1] Oxford English Dictionary, >

   The Tribunal is therefore not satisfied therefore that Clause 802.211 is met.

   Clause 802.213 - Adoption criteria

6. The Tribunal is however satisfied that the applicant would meet Clause 802.213.

7. This clause provides that the applicant must have been under 18 when the adoption took place as was the case here, 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.

8. The applicant has provided copies of documents evidencing adoptions in both the Philippines and in Australia. A Filipino Adoption Order was issued [in] July 2009 in [Court 1], declaring the applicant to be the child of [Mr and Ms A]. The applicant has provided a copy of the Adoption Order from the Supreme Court of NSW, dated [in] May 2016. [Mr and Ms A] are listed as the adopted parents. The applicant was born on [date] and was therefore under 18 when the adoption took place.

9. As confirmed by the adoptive parents, neither of these adoptions were in accordance with the Adoption Convention, and adoption compliance certificates are not in force. Therefore the first of the alternative criteria set out in Subclause 802.213 (2) does not apply.

10. As evidenced by copies of passports on file, the adoptive parents were Australian citizens at the time of the adoptions. Therefore, the second of the alternative criteria set out in Subclause 802.213(3) does not apply.

11. As confirmed by the adoptive parents, they were not approved by a competent authority as suitable adoptive parents before the adoption. Therefore the third of the alternative criteria set out in Subclause 802.213(4) does not apply.

12. Thus the applicant must meet Subclause 802.213(5). The applicant was adopted overseas and the adoptive parents were Australian citizens at the time. Subclause 802.213(5) provides that the adoptive parents must have been residing overseas for more than 12 months prior to the adoption or there must be compelling and compassionate circumstances why this should not apply. The adoptive parents have confirmed that they were not residing overseas for more than 12 months at the time of the adoption. At the Tribunal hearing the adoptive parents submitted that there were compelling and compassionate circumstances for this. The Tribunal notes that the adoptive parents [Mr and Ms A] had resided in the Philippines from 2005 to 2006 taking care of the child and processing the adoption in the Philippines.

13. The background of the adoption was explained to the Tribunal as follows. According to the adoptive parents, ever since they got married they longed to have a child. They tried IVF treatment from 1996 to 2002. As a result, [Ms A] had many side effects and suffered pain. She bled a lot and was bedridden for 3 to 5 days before the egg fertilised. Her family in the Philippines learnt about this, and her brother felt sorry for her and said that if he had a wife and child, the second child ‘would be hers’. This is what happened. After the applicant was born [Ms A] lived in the Philippines for one year with the child from 2005 to 2006. It took a few years for the adoption to come through. The birth certificate had the adoptive parents’ names on it. After one year [Ms A] had to return to work in Australia, doing process work full-time. [Mr A] was working as [an occupation]. They had to return to Australia because they were not allowed to stay away more than a year, and because they had to work to pay all the expenses of the travel and the adoption. They visited their child twice a year, on Christmas and her birthdays in most years. [Ms A’s] mother looked after her while they were in Australia. For the year 2008 until 2009 it would have been difficult for them to live in the Philippines because they needed to work to meet the high expenses of their solicitor. The applicant always regarded them as her parents and they spoke to her on Skype almost every night. Her expectation was that she would eventually come to Australia. The applicant is now in [grade] at [a named] College.  She is enjoying [school]. She did [a sport] for a while and does sport at school. [Name] is her favourite television program. She loves Australia and it feels like her home, but she would like to visit the Philippines.    

14. [Ms A] has stated that the visa involves the welfare of a child and the interests of the child. According to [Ms A] the applicant has no memories of her past in the Philippines. She said that ‘we are her family and her home. Her friends and her dreams are here too’. She argued that according to the Philippines order, as verified by the Supreme Court of NSW order, the adoptive parents have lawfully acquired full and permanent parental rights by the adoption.

15. There is no specific definition of 'compelling' or 'compassionate' in either the Migration Act1958 (the Act) or the Regulations. Whether a circumstance or reason is compelling and/or a compassionate ground is a question of fact and degree for the Tribunal and one which requires a subjective assessment which takes into account all of the circumstances.[2]

    [2] Anani v MIMAC [2013] FCCA 1140 (Judge Barnes, 26 July 2013) at [34].

16. In this case, the Tribunal is satisfied that there are compelling and compassionate circumstances for the waiver of the 12 month residence requirement. The parents did reside with the child in the Philippines for her first year. After that they left the child with her grandmother as they had to return to Australia to work full-time in order to pay for the legal, travel and adoption fees. During this time they remained in close contact with the applicant, visiting twice a year and speaking to her every day. They also worked on progressing the adoption. At the age of [age] the applicant came to Australia where she has remained since, becoming integrated into Australian life. The child has been legally adopted in the Philippines and Australia. To be ‘compelling’ the reasons in question must force or drive the decision-maker irresistibly to some end.[3]  The Tribunal is satisfied that the factors listed above are compelling. Further, given the fact that the adoptive parents have placed significant energy, time and cost into completing the adoption, the circumstances are also compassionate. It would have been difficult for them to complete the adoption and their daughter’s ultimate travel to Australia without the funds to do so.

    [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 (French CJ, Bell, Keane and Gordon JJ; and with Gageler J delivering a separate judgment) at [31].

17. Accordingly, cl.802.213 is met.

    Referral for ministerial intervention

18. As the Tribunal finds that cl 802.213 is met, it respectfully refers this matter to the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. In referring this matter to the Minister, the Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). The Tribunal refers the matter to the Minister for the reasons set out below.

19. Firstly there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens and an Australian family unit. The applicant child is aged [age]. She is legally adopted by Australian citizens and her adoptive parents have taken on the parental role since she was a baby. She is fully integrated into Australian school, community and family life. The separation of this child from her adoptive parents would cause her and her parents serious emotional harm and disrupt an Australian family unit. No matter what her migration path has been, this is a child who has been legally adopted into an Australian family unit and has become part of the Australian community.

20. Secondly, there are compassionate circumstances regarding the young age of the applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the child. If the child were not granted a visa, she would be separated from her adoptive parents which would cause her significant hardship. Further, her life would be seriously disrupted by being dislocated from an Australian school and community to live in a place which is unfamiliar to her.

21. Thirdly, it is possible that these unique circumstances were not anticipated by the legislation and would lead to unfair results. While the applicant is able to meet other criteria for this visa (see findings above), she is unable to meet clause 802.211 only because she became a dependent child prior to rather than subsequent to applying for her last substantive visa. This does appear to be a technicality, rather than a substantive issue. The conclusion that the applicant did not meet the criteria for a Child Visa does not appear to be in alignment with the objectives of Clause 802.211 which presumably was inserted as a permissive criteria to entitle dependent children to apply for visas, even though they had previously been refused other visas.

22. Fourthly, these are circumstances which may bring Australia’s obligations under the United Nations Convention of the Rights of the Child, 1990, into consideration including the best interests of the child. In this case, it is arguable that the best interests of the child are to remain in the family unit in Australia.

    Conclusions

1. As Clause 802.211 is not met, the applicant does not meet the criteria for a Child (Residence) (Class BT) visa.

2. The Tribunal refers the matter to the Minister for consideration pursuant to section 351 of the Act. 

   DECISION

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

   Jane Marquard
   Member

   
   

   ATTACHMENT – RELEVANT LAW

   Migration Regulations 1994

   1.03     Definitions

   …

   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.

   …

   step-child, in relation to a parent, means:

   (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

   (b)a person who is not the child of the parent but:

   (i)       who is the child of the parent’s former spouse or former de facto partner; and

   (ii)      who has not turned 18; and

   (iii)     in relation to whom the parent has:

   (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

   (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

   1.05A Dependent

   (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.

   …

   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.