1815855 (Migration)

[2019] AATA 3952

1815855 (Migration) [2019] AATA 3952 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815855

MEMBER:Linda Holub

DATE:19 June 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 19 June 2019 at 11:56am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) – Subclass 802 (Child) – approval required from welfare authority – approval of adoptive parents – no letter of support – evidence provided upon review – Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA, 351, 417, 507
Migration Regulations 1994 (Cth), Schedule 2 cls 802.213, 802.216, 802.226A, Condition 8503

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 Home Affairs on 15 May 2018 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 12 July 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.213.

4. The delegate refused to grant the visa on the basis that sub-clauses cl.802.213 (2)(3)(4) and (5) were not met and therefore clause 802.213 was not met.

5. In view of the applicant’s age, his father appeared before the Tribunal on the child’s behalf on 6 December 2018 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

   BACKGROUND

7. The Department’s Decision Record sets out that the applicant who was born in [date] arrived in Australia on 28 March 2013 on a Tourist (subclass 676) visa.  On 10 July 2013 the applicant applied for an Orphan Relative (subclass 837) visa and was refused on 11 September 2013 and that decision was subsequently affirmed by the Administrative Appeals Tribunal on 11 March 2014.  The applicant subsequently lodged this application for a Child (Residence) (class BT)(subclass 802) on 12 July 2017.

   CONSIDEDERATION 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 has sighted the applicant’s birth certificate and is satisfied the applicant was under 18 years of age when the adoption took place.

   Adoption of applicant

10. A minute of Consent Orders of the Family Law Court dated [October] 2015 lays out that the applicant was born at the end of [date] in [Country 1].  His adopted parents are his aunt and uncle.  His adopted mother is the sister of his birth father.  Before he was born, it was agreed between the two couples that his adopted parents would assume the care of and raise the applicant.  Within a month of his birth, his birth mother delivered the applicant into the care of his adoptive parents and he has lived with them since that time.  His adoptive parents commenced adoption proceedings in relation to [Applicant’s first name][1].

    [1] DIBP file [source deleted], folios 22-26.

11. The applicant provided an Adoption Order from the Supreme Court of New South Wales dated [May] 2017.  The Order states that:

    “THE COURT MAKES AN ORDER for the adoption of the child [Applicant] in favour of the adopting parents [Mr A] and [Ms A] and is the name “[Applicant’s surname]” as the surname and “[Applicant’s first name]” as the given names of the child”[2].

Evidence provided to the Tribunal prior to hearing

[2] DIBP file [source deleted], folios 17-20.

1. On 18 November 2018, the Tribunal wrote to the applicant inviting him to provide information in writing.  The letter outlined the facts in the Decision Record of the Department’s Delegate that he had not met clause 802.213.  The letter set out this clause and explained that the Presiding Member would discuss the requirements of the sub-clause at hearing and indicated that sub-clause (4) is the most relevant.  The applicant was asked to provide evidence that “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 parents”.

2. On 29 November 2019, the applicant provide a submission with a number of attachments:

   a.Copies of “Working With Children Check” for himself and his wife;

   b.Copies of “Police Clearance Check’ for himself and his wife;

   c.Two supporting statements from people who have known the applicant and his wife for more than 10 years; and

   d.A copy of an Intra-family Adoption Assessment Report by an adoption assessor dated 20 January 2017.  This Report was provided to the Supreme Court of NSW as part of its deliberations.

Evidence provided at hearing

1. The Tribunal discussed with the applicant a section of the Intra-family Adoption Assessment Report.  The Tribunal asked the applicant if it accurately reflects the circumstances of the adoption.  He confirmed that it did.  The relevant paragraph discussed with the applicant states:

   “In 2012, when [Applicant’s first name] birth mother [Mrs B] was pregnant with him, his birth father [Mr B] came to New South Wales to visit his sister and her husband.  It was during this visit that [Mr B] suggested the possibility of [Mr and Ms A] adopting the child that his wife was carrying.  Primarily, this was because he was aware that his sister and her husband desperately wanted to have a child and he, along with his wife, could make this happen.  Additionally, [Mr and Mrs B] already had seven children between them, ranging from school age to adults and this was a factor of consideration to them.

   A potential adoption was discussed and [Mr and Ms A] were in agreement with the idea.  [Mrs B] explains that she agreed to the suggestion as “I put myself in [Ms A’s] shoes as she couldn’t have kids.  I am a mother too, a mother already”.  [Mr B] reflects “I know my sister, she wanted a child, so I asked if she wanted a kid, they said yes and they were very happy”.  [Mr B] explains that his wife’s initial response to the proposal was “okay, we can have another one” and two years later they had a daughter, [name deleted] (date of birth).  My discussions with [Mr and Mrs B] left a sense that this situation could be likened to a somewhat unplanned surrogacy”[3].

   [3] AAT file, folio 71.

2. The Tribunal explained to the applicant that in the previous Tribunal (differently constituted) decision of 10 March 2014, which affirmed the Department’s decision to refuse the applicant a Child (Residence)(Class BT) visa, a different explanation of the circumstances of the adoption was provided by the visa applicant’s mother. The Tribunal explained that this could be potentially adverse and therefore put the information to him under section 359AA of the Migration Act:

   “She [the visa applicant’s mother] gave evidence about how the applicant came into their care. [Ms A] explains that her brother and sister-in-law had been having issues in their relationship. The sister-in-law went to [Country 1], where she’s from, when she was pregnant with the applicant. She left the applicant’s father in [Country 2] with their two other sons who are around [age] and [age] years old. He followed her to [Country 1] with the children. From there, in early 2013, he can to Australia to visit [Ms A].  During the visit he discussed the problems he was having with his partner. He then returned to [Country 1] and was there for the birth of the applicant. [Ms A] explained that the idea for the applicant and his mother’s visit to Australia came out of discussions she had with her brother. After the birth she was feeling depressed and not doing well. They thought she could come home for a visit with the baby on her way back to [Country 2]. [Ms A] and her husband invited them for the visit. They came on 28 March 2013, and stayed at their place. She was behaving strangely from the beginning. She would leave the baby and go out for long periods. Then one day she did not return. The baby was left at [Ms A’s] house. [Ms A] told the Tribunal she was in contact with the applicant’s father throughout this period and he was aware of what was happening. He told them he was not able to care for an infant child because he had two other children he was looking after and he asked for their help with the applicant. They agreed to look after the child while the situation with the parents could be resolved”[4].

   [4] DIAC file, [source deleted], folio 94.

3. The applicant’s father responded that they should not have gone down the path of applying for the Child (Residence)(Class BT) visa.  He explained that even before the applicant was born, he and his brother -in-law sought legal advice about how they can arrange the adoption of the child.  They were advised that there are gaps in the law and that they cannot wait to arrange the adoption while the child is in another country.  They were advised that if they committed to bringing the child here they should start the process by applying for the Child (Residence) (Class BT) visa.  He stated that otherwise, the child would become accustomed to a different family and it would be harder for him to adjust to his adopted family.  So the child was brought to Australia and they started caring for it while the legal processes were put in train.  He stated that together with the lawyer, they gave consideration to what the most appropriate visa would be.  He explained they wanted some sort of visa to ensure the child was in legally in Australia; while at the same time runing a parallel process to formally adopt the child.  He stated that there was no suitable visa to use in their circumstances.  The advice they were provided was to lodge an application which would take some time during which the adoption would take place.

4. The Tribunal put to applicant in the terms required by s.359AA of the Migration Act that the same story was included in the applicant’s request for a waiver of condition 8503. The applicant’s father explained that they used same migration agent. He stated they trying to find a vehicle to ensure the applicant could remain in Australia.

5. The applicant stated that in any event it is now irrelevant.  He stated that it was agreed between the two couples before the child was born that he and his wife would adopt and bring up the child and they have accepted the child and cared for him since he was three weeks old.  The applicant’s father stated that he doesn’t know where the child biological father is currently and the biological mother is having problems.

6. The applicant’s father outlined why he and his wife went down the route of adoption through the NSW Supreme Court rather than through the NSW Department of Family and Community Services (FACS). 

7. At hearing, the Tribunal explained to the applicant the requirements of the Migration Act that it needed to apply in relation to the case, under section 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.

8. The Tribunal explained to the applicant’s father that clause 4(b) is of relevance to him and that for the Tribunal to be able to remit the decision to the Department, written evidence is required showing that 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 parent.  The applicant confirmed that he did not provide evidence this.  He explained that because [Country 1] is not a signatory of the Hague Convention their only option was to apply for the Supreme Court for an Adoption Order.

9. The applicant’s father claimed that he had sought Ministerial Intervention but was advised by the Department that as the Adoption Order from the Supreme Court was finalised, he could withdraw his application for Ministerial Intervention.  The Tribunal explained that it was not in a position to comment on the advice of the Department but it appeared that the Ministerial Intervention pathway was a possible option for him and indicated to the applicant that it would support such an application.  He agreed to provide the Tribunal with a copy of the application and his withdrawal by 6 January 2019.

Post-hearing submissions

1. On 17 January 2018 the applicant’s father sought an extension of time to provide written submissions.  He asked for a further two months.  The Tribunal granted him until 1 April 2019. 

2. On 22 February 2019 the applicant’s father sent an email to the Tribunal regarding the requirements of subclause 802.213(4)(b).  It states that every piece of legislation defines “competent authority” differently and refers to the fact that the Adoption Act of 2000 has a much wider view of competent authority.  It also states that he contacted the Department of Family and Community Services to obtain further information as to why his initial request in 2015 was rejected by the Department.  His email provides further context of FACS involvement in intercountry adoption and other points in respect of ‘competent authority’. He asked for the Tribunal’s point of view and argues that there is an obvious gap in relation to the case of his adopted son. 

3. The Tribunal responded to the applicant’s father by telephone on 28 February 2019 explaining that it is not in a position to provide a ‘point of view’ in relation to the materials he had provided to date.  He was reminded that the Tribunal had granted until 1 April 2019 for final submissions.

4. On 6 March 2019 the applicant’s father again emailed the Tribunal indicating that he has given authority to an officer of the Department of Family and Community Services to discuss the case in respect of his son’s adoption with the Presiding Member.  The applicant was advised by telephone on the same day that he could provide a copy of the Tribunal’s letter of 28 November 2018 to FACS as it outlined the relevant law the Tribunal must apply to the facts of the case and provides guidance on the written material required. 

5. On 19 March 2019 the Presiding Member spoke with an officer within the NSW Department of Family & Community Services, Community Services. The Presiding Member explained to the officer what the Migration Act requires in relation to the case and referred to correspondence from the Tribunal to the applicant dated 28 November 2018. During the telephone conversation, it initially appeared that the officer thought that FACS was being directed by the Tribunal to provide information. The Tribunal explained that was not the case and clarified the requirements of the Migration Act and that the applicant had indicated to the Tribunal that he thought that FACS might be able to provide ‘something’ that would support his case that "before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent..." as required by the Migration Act.

6. On 20 March 2019 the applicant’s father wrote to the Tribunal by email seeking additional time to lodge further submission.  He also advised that he had spoken to the officer in FACS referred to above that she has raised a concern that clause 802.213 (4) (b) requires that ‘before adoption’ a competent authority has assessed and sought clarification as to whether a retrospective assessment would be sufficient.  The email states that:

   “As I have mentioned before to the Tribunal the intention is not to avoid the process, it’s that I have been requesting FACS since 2014 for the process to be initiated and they always knocked back by saying that it is not their jurisdiction and directing me to judicial for court order”[5].

   [5] AAT file, folio 113.

7. The Tribunal notified the applicant’s father on 21 March 2019 that it is unable to provide further clarification of the relevant clause of the Migration Act and granted a final extension until 1 June 2019.

8. On 29 May 2019, the applicant emailed the Tribunal attaching a letter from the Department of Family and Community Services dated 24 May 2019.  The letter states that the adoptive parents satisfy the requirements approving his and his wife’s suitability for adoption and providing a copy of an adoption assessment report which forms the basis of the approval.  The email states that the same assessor undertook the previous assessment, this time at the request of FACS. 

9. The circumstances of this case are that the applicant was adopted by his aunt and uncle and therefore the adoption was not in accordance with the Adoption Convention and an adoption compliance certificate was not in force.  The adoptive parents were Australian citizens, at the time of adoption however, the applicant was not adopted overseas.  Therefore, the applicant does not meet cl.802.213(1)(2)(3) or (5).

10. The substantive issue in this case is whether the adoptive parent, who was an Australian citizen, permanent visa holder or eligible NZ citizen at the time of adoption, was approved by a competent authority as a suitable adoptive parent for the applicant before the adoption.  Evidence provided to the Tribunal is that the applicant who was born in [date] has been cared for by his adoptive parents since he was three weeks ago.  That following an application to the NSW Supreme Court in October 2015, the Supreme Court made an Adopted Order [in] May 2017  for the adoption of the applicant by his adopting parents – parents – [Mr A] and [Ms A].

1. In the state of New South Wales Family and Community Services is the ‘competent authority’.  Although the assessor used by the Supreme Court of NSW was a FACS approved assessor, the adoption did not take place through the FACS assessment process.  The Tribunal has provided the applicant a lengthy period to provide any further evidence to demonstrate that the adoptive parents were approved by a competent authority as a suitable adoptive parents for the applicant before the adoption.  He has been unable to do so for the reasons outlined.  The Tribunal has taken into account that the applicant provided an adoption approval from the Department of Family and Community Services stating that [Mr A] and [Ms A] satisfy the requirements of the New South Wales Adoption Act 2000 and are deemed as such and eligible to adopt the applicant.  This document is dated 24 May 2019 and consequently does not meet the requirements of cl.802.213(4).

2. Accordingly, cl.802.213 is not met.

3. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

Ministerial Intervention

1. The Tribunal has had regard to the circumstances of this case and the process the applicant’s biological and adoptive parents undertook.  The Tribunal had some concerns that they embellished the facts for the purpose of the application of the Child (Residence)(Class BT) visa.  However, the Tribunal is prepared to accept that the adoptive parents were genuinely trying to find a pragmatic way in which to arrange the adoption and the child’s legal status in Australia.  Furthermore, the Tribunal has had regard to the fact that formal adoption arrangements have now been in place for over two years under the laws of the state of New South Wales and the applicant has lived with the adoptive parents since [date] and he is now over [age] years of age.

2. While the applicant did not provide the Tribunal with a copy of the initial application for Ministerial Intervention and its withdrawal it is sympathetic to the difficulty the applicant is facing given the circumstances of the adoption. Therefore the Tribunal very supportive of Ministerial Intervention in this case and believes that it accords with the Minister’s guidelines on the exercise of his powers under sections 351, 417 and 501 of the Migration Act.

3. The Tribunal has considered the guidance on cases that should be brought to the Minister’s attention and believes that the case fits a number of the unique or exceptional circumstances referred to in the guidelines, including that there are:

   a.strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family, where at least one member of the family is an Australian citizen or Australian permanent resident.

   b.compassionate circumstances regarding the age and/or health and /or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

   c.circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

   DECISION

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

   Linda Holub
   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.