1808632 (Migration)

[2019] AATA 1117

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 349
Migration Regulations 1994 (Cth), rr 1.03, 1.05, 1.14, Schedule 2, cls 802.212, 802.213, 802.215, 802.221, 837.213

CASES
Anani v MIMAC [2013] FCCA 1140
Paduano v MIMIA (2005) 143 FCR 204
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

OVERVIEW

1. 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.

2. 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.

3. [In] February 2014 [a] Malaysian [Court] granted guardianship to the sponsor.

4. 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.

5. 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. At that time, Class BT contained two subclasses: Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims were made in respect of the Subclass 837 (Orphan Relative) visa. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.837.213 which requires that the applicant be an orphan relative of an Australian relative. Regulation 1.14(b) of Schedule 2 provides that an applicant is an orphan relative if he or she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The delegate of the Department refused to grant the visa because the applicant did not meet cl.837.213 as the delegate was not satisfied that the applicant’s mother (the sponsor’s sister) was dead, incapacitated or of unknown whereabouts as required by Regulation 1.14(b) of Schedule 2. The Department refused to grant the applicant the visa on 14 March 2018.

6. [In] October 2018 the visa applicant, aged [specified] was formally adopted in Malaysia by the sponsor.

7. The sponsor and her husband were invited to appear before the Tribunal on 9 October 2018 to give evidence and present arguments on behalf of the applicant. At the request of the sponsor, the hearing was postponed as the sponsor said she was in Malaysia to attain relevant evidence. The sponsor appeared at the rescheduled hearing on 5 December 2018. The sponsor was represented in relation to the review by her registered migration agent who was not present at the hearing.  Mr [B], the adoptive father, also gave evidence at the hearing.

8. 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

9. 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.

10. 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

11. 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).

12. 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).

13. 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.

14. 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.

15. Accordingly, cl.802.212(1)(a) is met at the time of application, and continue to be met at the time of decision.

    Sponsorship

16. 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

17. The applicant had not turned 18 at the time of application or decision therefore he satisfies cl. 802.221.

    Adoption criteria: 802.213

18. If the Australian citizen 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.

19. Clause 802.213 (1)(a) requires that the applicant was under 18 at the time of adoption. As discussed earlier, the applicant is currently [age]. According to the Adoption Certificate dated [in] October 2018 provided to the Tribunal, the visa applicant, aged [specified], the son of [Ms A], had been adopted by [Ms C] on that day.  The Tribunal is satisfied therefore that the applicant was under 18 years at the time of adoption.

20. Clause 802.213 (2) is the first of the alternative criteria which can be met. It requires that the adoption be in accordance with the Adoption Convention and that there be an adoption certificate in force. As confirmed with the sponsor at the hearing, the adoption did not take place in accordance with the Adoption Convention and there is no adoption certificate in place. Accordingly, clause 802.213(2) is not met.

21. Clause 803.213 (3), the second of the alternative criteria is only applicable where the applicant was an Australian citizen when adoption took place. As this was not the case here clause 803.213 (3) does not apply.

22. Clause 803.213 (4), the third of the alternative criteria, is only applicable when there has been approval by a competent authority in Australia. As there has been no such approval, clause 802.213 (4) does not apply.

23. Clause 802.213(5) is the final alternative criterion and therefore the applicant must meet this criterion if the visa is to be granted. This criterion applies where the applicant was adopted in an overseas country. Here, according to the Adoption Certificate provided, the applicant was adopted in Malaysia.  The adoptive parent must be an Australian citizen. The adoptive parent has an Australian passport and is therefore an Australian citizen. The clause requires either that when the adoption took place, the adoptive parent had been residing overseas for more than 12 months or the Minister is satisfied that because of compelling or compassionate circumstances the requirement for 12 month residency should not apply.

24. In this case, the sponsor, who is the adoptive parent, has conceded that she was not residing overseas for more than 12 months prior to the adoption. The Tribunal has therefore considered whether there are compelling and compassionate circumstances that the 12 month requirement should not apply. The Tribunal has concluded that there are compelling and compassionate circumstances for the following reasons.

25. Firstly, the adoptive parent has been caring for the child since he was [age], and he has been living in Australia from that age until the current time. He is now [older]. The child considers the adoptive parents to be his parents as they have provided parental care his whole life. The Tribunal is satisfied that these are unusual circumstances, in that the applicant was living in Australia for a long period prior to the adoption, and therefore it is compelling that they not be required to return to fulfil the residency requirement as clearly the adoption is genuine and based on a long history of care and dependency.

26. The Tribunal accepts the sponsor’s account of how this situation arose, as follows. She said that her sister, [Ms A], adopted the child from his birth mother as the birth mother was [young] and unable to care for [the applicant], particularly as she had already given birth to [children]. Ms [A] did not have any children and her mother suggested she adopt a child which is why she adopted [the applicant]. The sponsor was asked by the Tribunal to explain why, given these circumstances, less than a year later she allowed her sister to take [the applicant] to Australia. The sponsor said that after the adoption took place her mother looked after the child as her sister was working. When her mother travelled to Australia she brought [the applicant] for a visit as her sister was working. [The applicant] then stayed on for one year in Australia, and then went back to Malaysia briefly for the visa to be renewed. Her sister’s partner was not happy that the adoption had taken place, so it was her mother’s suggestion that the sponsor look after him, and the sponsor was very happy to do so. Her sister was happy with this arrangement. Her sister had no contact with the birth mother, who later passed away. As a result of this arrangement, [the applicant] has always lived with the sponsor and her husband. Her sister only looked after the applicant for the first nine months, with primary care from her mother, and no bond was formed between them. The adoptive mother is therefore unable to provide the applicant with physical, mental and psychological support and they do not ‘know each other’. Her sister claims that she will never be able to support him. The Tribunal accepts that this evidence and that the applicant has been part of the family unit with the sponsor and her husband since he was nine months old.

27. Secondly, the Tribunal is satisfied that the applicant is settled in Australia and an active member of his school and church community and it would be very difficult and disruptive for him to be required to fulfil the residency requirement if he travelled with his mother.  Further, if his mother was required to fulfil the residency requirement without him, this would cause separation anxiety for him, given that he has been living with her as his mother for so long. After attending a local preschool [the applicant] is now in Year [number] at [named] School. According to evidence from the sponsor and her husband, and school documents provided, he is performing well academically and is a good [athlete]. He was recently sent to regional trials and he has won numerous awards. He is in the school [sporting] team and trains out of school, and as a member of [a] Club. He also plays the piano. The family has travelled to different locations around Australia, as evidenced by various photographs. According to the sponsor and her partner, the applicant has many friends from school, the [sporting] team and church choir. The family also socialises with family friends and relatives. On weekends, they go to church and [the applicant] always plays with friends and attends birthday parties. [The applicant] speaks Chinese at home and English at school. He is a ‘proud Australian’ and supports the Australian cricket team. According to the sponsor, he is happy and adjusted and an ‘Australian child by now’. They live in an apartment in [Suburb 1] together with a [relative], with whom [the applicant] gets on well. The sponsor submitted that a change in his situation would have had an adverse impact him as he is fully integrated in the Australian community. If he returned, Malaysia would be totally unfamiliar to him.

28. Mr [B], the sponsor’s partner, said that the child was part of their family and requested that the matter be dealt with in ‘fairness and equity so that their family can be complete’. Mr [B] said that the applicant is physically and mentally healthy and they put their ‘full hearts’ into the applicant’s life.

29. A letter from the Minister of [a] Church said that he had known [the applicant] for three years and nine months. He was baptised [in] December 2015. The Minister said that the applicant attends church with his ‘loving guardian’ Mr [B], is a member of the choir, and goes to Sunday School. The Minister commented that they are a loving and devoted family and ‘the guardians are proud of [the applicant]’.

30. In information provided to the Minister in relation to the Ministerial intervention decision, the Department referred to a report by [a] clinical psychologist who indicated that the applicant was well-adjusted and happy and was thriving academically, socially and emotionally and that his identity was firmly tied to the sponsor and her spouse. The psychologist indicated that he would suffer ‘extreme emotional disturbance’ if he was required to depart.

31. The Tribunal accepts on the basis of this evidence that the applicant is settled and happy, in school, church and extra-curricular activities and that he has friends and family in Australia, and regards himself as Australian. Considering this it would have been extremely disruptive for him to have had to leave Australia to live in Malaysia for 12 months with his mother prior to the adoption. If his mother had lived in Malaysia without him, this also would have been very unsettling for him considering his emotional bond to her, as evidenced by the psychologist’s report.

32. Thirdly, the sponsor and her partner have work commitments which would have made it very difficult for either of them to move to Malaysia for 12 months prior to the adoption. They work in a [company] which provides [products] to [shops] and other outlets. The sponsor is the [Occupation 1] and her partner is in [Occupation 2]. While her partner works full-time, she works part-time so that she is able to look [the applicant]. Notwithstanding this, they are dependent on both of their salaries such that it would have been difficult to forego income if she had been required to live in Malaysia for 12 months prior to the adoption. According to their evidence, if they had left for 12 months they would have lost their jobs and it would have been difficult for them to find new jobs on their return, because of their ages.

33. Fourthly, genuine attempts were made by the sponsor to legally adopt the applicant, notwithstanding the fact that she did not reside there for 12 months prior to adoption. She described how she had ‘been waiting for adoption for a few years’. She had first been granted a guardianship order, and she then applied for adoption.

34. 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.[1] To be ‘compelling’ the reasons in question must force or drive the decision-maker irresistibly to some end.[2] While the word ‘compelling’ may include reasons which are forceful, involve moral necessity or are convincing, it does not, by itself, necessarily require an involuntary element involving circumstances beyond a person's control.[3]

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

    [2] 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].

    [3] Paduano v MIMIA (2005) 143 FCR 204 at [37].

35. In reaching a decision, the Tribunal has taken into account Departmental policy in relation to the waiver of the 12 month overseas residence requirement, which acknowledges that, given the complexity of situations that can arise with regard to adopted children, rare cases may arise where a person usually resident in Australia adopts a child overseas in circumstances that fall outside the provisions.  The policy states, by way of guidance, “officers may use this waiver without referral to National Office, exercising their own judgement in deciding whether the circumstances of the case are ‘compelling or compassionate’ or not; no further policy guidance is currently considered necessary”. In the Tribunal’s view, this is a case where a person usually resident in Australia has adopted a child outside the usual provisions justifying a waiver of the 12 month overseas residence requirement because of compelling and compassionate circumstances.

36. Considering the evidence along with these decisions and Departmental policy, the Tribunal is satisfied that there are compelling and compassionate circumstances why the 12 month requirement should not apply. The applicant has been living in Australia since he was [a certain age], and it would have caused extensive disruption to his life if he was required to live in Malaysia for twelve months, or if his mother was to live there without him, which would also have caused separation anxiety. Further, such a requirement would have been very difficult for the sponsor to meet considering the dependency she has on her income from a stable part-time job. These are unusual circumstances where the child has lived in Australia for nearly all of his [years], with his adoptive parents. The Tribunal is satisfied therefore that there are compelling or compassionate circumstances that the 12 month residency requirement not apply. Therefore the applicant meets clause 802.213(5)(b)(ii).  

1. 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

2. 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

   Jane Marquard
   Member

   
   

   ATTACHMENT A – SUMMARY OF 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

   802.212  

   (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).