1808632 (Migration) [2019] AATA 1117 (9 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1808632
MEMBER:Jane Marquard
DATE:9 January 2019
PLACE OF DECISION: Sydney
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,
·cl.802.213,
·cl.802.215, and
·cl.802.221 of Schedule 2 to the Regulations
Statement made on 09 January 2019 at 3:52pm.
CATCHWORDS MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – originally Subclass 837 (Orphan Relative) – 12 month overseas residence requirement waived – compelling and compassionate circumstances – applicant lived in Australia for most of life with sponsor – biological mother passed away – adoption – decision under review remitted
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
OVERVIEW
The visa applicant was born in Malaysia on [date] and is currently [age]. His sponsor for this application is his aunt, who is an Australian citizen. [In] October 2007, [he] was adopted by the sponsor’s sister, [Ms A], in Malaysia. However the applicant has not lived with the sponsor’s sister since June 2008, and has instead been residing in Australia with the sponsor since then, when he was [age]. The applicant arrived in Australia [in] June 2008 on [a temporary] visa and departed [in] May 2009. The applicant then returned [in] May 2009 on a new [temporary] visa, which ceased on 3 January 2010, and he has not departed Australia since. [In] September 2011 the applicant’s biological mother died.
The applicant applied for an Orphan Relative (Subclass 837) visa on 23 November 2012. The application was refused on 17 May 2013. This Tribunal, differently constituted, affirmed the decision on 1 August 2013.
[In] February 2014 [a] Malaysian [Court] granted guardianship to the sponsor.
On 11 January 2017, the Minister intervened under discretionary powers. A letter from the Department of Immigration and Border Protection (the Department) dated 19 January 2017 notified the applicant that the Minister had exercised his public interest power to substitute the decision of the Tribunal made under section 349 with a more favourable decision by granting a [temporary] Visa. The Department stated that the effect of the visa was to enable the applicant to apply for another visa while in Australia. It was envisaged at the time that he could apply for a [temporary] visa.
The applicant applied for the visa the subject of this review, a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act), on 7 April 2017.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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1808632 (Migration) [2019] AATA 1117
Case
[2019] AATA 1117
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, originally made under subclass 837 (Orphan Relative). The applicant sought review of a decision made by the Administrative Appeals Tribunal. The applicant had lived in Australia for most of their life with the sponsor, who had adopted the applicant. The sponsor had also been granted a waiver of the 12-month overseas residence requirement due to compelling and compassionate circumstances.
The Tribunal was required to determine whether the applicant met the criteria for a Subclass 802 visa, specifically concerning the definition of a "dependent child," the sponsorship requirements, the age requirement, and the adoption criteria as set out in Schedule 2 of the Migration Regulations 1994. The Tribunal also considered the impact of a prior court order granting guardianship of the applicant to the sponsor, which preceded the formal adoption.
The Tribunal found that the applicant met the definition of a dependent child as they were under 18 at the time of application and decision. It was satisfied that the sponsor, an Australian citizen, met the sponsorship requirements under clause 802.215(b) and that the applicant met the age requirement under clause 802.221. Crucially, the Tribunal was satisfied that the adoption was lawful and that the sponsor had acquired full and permanent parental rights, fulfilling the requirements of clause 802.213(5)(d), despite the adoption occurring in an overseas country and the sponsor not having resided overseas for the requisite 12 months, due to compelling and compassionate circumstances.
The Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria under clauses 802.212, 802.213, 802.215, and 802.221 of Schedule 2 to the Regulations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
At the Tribunal hearing the sponsor, on behalf of the applicant, confirmed that in the Departmental application the applicant had made claims in respect of Subclass 837, Orphan Relative, but before the Tribunal was making claims in respect of Subclass 802, Child. The sponsor provided a translated copy of an Adoption Certificate dated [in] October 2018 which confirmed that the visa applicant, aged [specified], the son of [Ms A], had been adopted by the sponsor. The Tribunal later viewed the original certificate. CONSIDERATION OF CLAIMS AND EVIDENCE The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An extract of the Regulations is attached to this decision at Attachment A. In coming to a decision, the Tribunal has taken into consideration the documentary evidence provided to the Department and Tribunal as well as the oral evidence of the sponsor and her husband at the Tribunal hearing. Clause 802.215(b) and Clause 802.212 Clause 802.215(a) applies where the visa application is supported by a letter of support from a State or Territory government welfare authority. There is no letter of support in this case. Therefore, the applicant does not meet cl.802.215(a) and must therefore meet the requirements in cl.802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18 and is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person. The sponsor must also be the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a). A copy of the sponsor’s Australian passport was provided, indicating that she is an Australian citizen and over 18. The next issue is whether she is the Australian citizen mentioned in cl 802.212(1)(a). This provision essentially requires that at the time of application and decision, the applicant is a ‘dependent child’ of that Australian citizen. ‘Dependent child’ is defined in r.1.03 of the Regulations, and includes a child under the age of 18. A copy of the applicant’s passport was provided with his application, indicating that his date of birth was [specified], making him [a certain age] at the date of application, and [a certain age] as at the date of decision. The Tribunal is satisfied that the applicant is under the age of 18 years old and is therefore a dependent child of the sponsor. Accordingly, cl.802.212(1)(a) is met at the time of application, and continue to be met at the time of decision.Sponsorship On the basis of the evidence discussed above, the Tribunal is satisfied that the applicant is sponsored by a person who has turned 18 and is an Australian citizen, in compliance with cl.802.215(b).Age The applicant had not turned 18 at the time of application or decision therefore he satisfies cl. 802.221.Adoption criteria: 802.213
Decision
Reasons for decision
Finally, in order to meet the adoption criteria, the adoptive parents must have lawfully acquired full and permanent parental rights by the adoption. The applicant has provided the original Adoption Order dated October 2018 as well as a translated copy. They had also previously provided to the Department a Court Order dated [in] February 2014 made in the [court] at [a city in Malaysia] pursuant to Section 3 of the Guardianship of Infants [Ordinance]. The order was based on an Affidavit of Support made by the sponsor and her spouse, and an Affidavit of Support made by the applicant’s adoptive mother. The Court Order granted Guardianship with full care, custody and control of the applicant to the sponsor and gives the sponsor liberty for the applicant to reside with her in Australia. Enquiries made by the Department’s overseas post in Kuala Lumpur to the [Court] [and] other Malaysian authorities confirmed that this legal guardianship order, which pre-empted the adoption was a genuine legal document. On this basis, and given that on the face of it the Adoption Order appears to be a genuine legal document, the Tribunal is satisfied that the Adoption Order is also genuine and that the sponsor has lawfully acquired full and permanent parental rights by the adoption, in compliance with clause 802.213(5)(d). 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, · cl.802.213, · cl.802.215, and · cl.802.221 of Schedule 2 to the RegulationsJane MarquardMemberATTACHMENT A – SUMMARY OF RELEVANT LAWMigration Regulations 19941.03 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 802802.212 (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 . …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. 802.215 The applicant is: (a) a person whose application is supported by a letter of support from a State or Territory government welfare authority; or (b) sponsored by a person who: (i) has turned 18; and (ii) is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and (iii) is: (A) the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a); or (B) the cohabiting spouse or de facto partner of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a).