1833766 (Migration) - [2023] AATA 866

1833766 (Migration) [2023] AATA 866 (23 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jennifer Eileen Samuta
CASE NUMBER:  1833766
MEMBER:David Barker
DATE:23 February 2023
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 of Schedule 2 to the Regulations
·cl.802.213 of Schedule 2 to the Regulations
·cl.802.215 of Schedule 2 to the Regulations, and
·cl.802.221 of Schedule 2 to the Regulations.

Statement made on 23 February 2023 at 1:12pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adoption of nephew by aunt – adoption process – Fiji’s status as party to Hague Convention and recognition in Australia of applicant’s adoption – no adoption compliance certificate – adoptive parent had not been residing overseas for 12 months before adoption – compelling or compassionate circumstances to waive requirement – sponsor’s employment and financial support for extended family, including mother’s medical treatment and return trips – sponsor’s long-term care and support of applicant – consistent and credible evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 2A, 65, 338(2), 359(2), 362A
Migration Regulations 1994 (Cth), Schedule 2, cls 802.212(1)(a), 802.213(2), (5)(b)(ii), 802.215(b), 802.221(1)(b)
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 October 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 January 2018. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) (the Subclass 802 visa) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of a Subclass 802 visa).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
The delegate refused to grant the Subclass 802 visa on the basis of their assessment that cl 802.213 was not met. The delegate found that elements of the adoption process did not meet legislative requirements in Australia and further to this, the adoptive parent had not, as required, resided overseas for more than 12 months at the time of the adoption and that there were compelling or compassionate circumstances to waive…

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.

Continue reading 1833766 (Migration)

Details

AGLC: 1833766 (Migration) [2023] AATA 866
Case: [2023] AATA 866
Decision Date: 23 February 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child adopted by his aunt, who is an Australian permanent resident. The applicant, born in Fiji, arrived in Australia on a visitor visa in 2015. The adoption order was made in Fiji in 2016. The sponsor, the applicant's aunt, had been residing in Australia since 1986 and held permanent residency. The Tribunal considered the evidence presented by the applicant and sponsor, including documentary evidence relating to the adoption, identity documents, and financial records.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 802 visa, particularly in relation to the adoption. This involved determining if the Fijian adoption was recognised in Australia, and if the requirements of Regulation 802.213 of the Migration Regulations 1994 were satisfied. Specifically, the Tribunal had to consider the requirement for an adoption compliance certificate, the sponsor's residency status at the time of adoption, and whether compelling or compassionate circumstances existed to waive the requirement for the sponsor to have resided overseas for 12 months prior to the adoption.

The Tribunal reasoned that the applicant met several criteria for the Subclass 802 visa, including being a dependent child and satisfying the requirements of clauses 802.212, 802.213, 802.215, and 802.221 of the Migration Regulations. While acknowledging the complexities surrounding the recognition of Fijian adoptions in Australia, including issues with the Hague Convention and the absence of an adoption compliance certificate, the Tribunal found that the sponsor's long-term care and support of the applicant, along with evidence of financial support for extended family, constituted compelling and compassionate circumstances. The Tribunal also noted the consistent and credible evidence provided by the applicant, sponsor, and other family members.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for the Subclass 802 visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant was born on [Date] in Fiji. The applicant’s birth certificate, which was registered in 2005, lists the sponsor as his mother and no father is listed. Elsewhere the biological parents of the applicant are identified as the brother of the sponsor, [Mr C] and [Ms D]. The applicant was granted a FA-600 visitor visa on 22 September 2015, valid to 05 February 2016 and arrived in Australia on 5 November 2015. The sponsor was born in Fiji and is [Age] years of age. She first arrived in Australia in November 1986 and has held permanent residency since [2000]. Her mother, [Ms B], sister, [Ms E], the applicant’s younger brother [Mr F] are also onshore in Australia and in conjunction with the applicant and sponsor live together in the same shared household. According to Departmental records, in the 12 months prior to the adoption the sponsor spent 46 days outside Australia. A copy of an Adoption Order was provided with the application. This Adoption Order was made in the Family Division of the Magistrates Court at Suva [in] 2016 and identifies the sponsor as the adopting parent. Documentary evidence provided to the Department in association with the visa application includes:·A Guardian-Ad-Litem Report, between the sponsor and [Mr C] (the biological father) and [Ms D] (the biological mother) and the applicant, dated 10 February 2016;·Adoption Order authorising the sponsor to adopt the applicant, dated [2016];·Fijian Registrar General’s Office, Suva, Fiji - Births, Deaths and Marriages Registration Certificate in the name of the applicant, dated [2016];·Passport size photo of the applicant;·Copy of Republic of Fiji passport in the name of the applicant;·PAYG payment summaries in the name of the sponsor;·A statement from the sponsor explaining the reasons for not living overseas for 12 months prior to the adoption;·Permission to travel with Air Pacific, Fiji's International Airline, in the name of [Ms B]. The review application was lodged with the Tribunal on 16 November 2018. On 1 February 2019, the sponsor emailed the Tribunal and requested an extension of time in relation to the review as she was in the process of making an application for consent / parenting orders in the Family Court of Australia for both the applicant and his younger brother. On 31 August 2021, the Tribunal sent the applicant and sponsor an invitation to participate in a hearing on 22 September 2021. On 15 September 2021, the Tribunal received a postponement request from the applicant’s legal representative, Mr Russell Debney, Principal and Special Counsel, BridgePoint Group Legal. The basis of the postponement request were as follows:1. The recognition in Australia of [the applicant]’s status as the adopted child of [Ms A] is a critical requirement and, depending upon our advice when the question of recognition is resolved, it is vital evidence in support of the application, or potentially, in support of additional or alternative applications that may need to be made.2. Currently, recognition in Australia of Fiji adoption orders is extremely problematic. Fiji’s status as an eligible Contacting Party to the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is, arguably, in question, with a number of Contracting Parties having suspended intercountry adoption validation due to concerns over compliance by Fiji of its Convention obligations.3. In November 2019, proceedings were commenced in the Supreme Court of NSW by way of a Summons for Declaration of Validity of the Fijian Adoption Orders. These proceedings were based on the premise that if Fiji was non-compliant under the Hague Convention, then it may not be therefore a Contracting Party and validation of the Fiji adoption would require an order of the Supreme Court. On the other hand, if it could be determined that Fiji was a Contracting Party, irrespective of compliance, then recognition of the Fiji adoptions would be possible without a court order under Section 108 of the NSW Adoptions Act. Obtaining an adoptions compliance certificate in accordance with the requirements of the Hague Convention would determine that.4. The Supreme Court has adjourned the proceedings with liberty to restore (and that might be needed if the Section 108 pathway is not, for one reason or another, available).5. [Ms A] has instructed Fiji solicitors, [Law firm], to assist her in obtaining the required adoption compliance certificate from the Department of Social Welfare in Suva. Whether as a result of difficulties associated with the Covid restrictions or otherwise, progress has been very slow and the application is still underway. [Law firm] has advised in April of this year that “There is now a halt in the issuing of the compliance certificate as there was a complaint from Australia that they were not satisfied with the compliance certificate on the basis it was not compliant with the Convention requirements”.6. [Ms A] has today instructed a new solicitor in Suva in order to expedite the application if possible. This followed my request that she obtain a status report on the application for the compliance certificate.7. I am not yet briefed on the application before the AAT. And I shall, in any case, need to consider whether or not I should represent [Ms A] at the hearing, or indeed whether or not a face-to-face hearing is needed. Time is short and the inability to meet personally during the lockdown (I am working at home) with [Ms A] is a further difficulty in obtaining adequate instructions.8. The difficulties experienced by [Ms A] in dealing with Fiji should not be permitted to prejudice her application or the review of the decision by the AAT and it would be manifestly unfair to her and the child to allow that.Please let me know if you will accede to this application for postponement, preferably on terms that would allow time for [the applicant]’s Fiji adoption to be recognised or validated in Australia– or not, and otherwise on the basis of undertakings from [Ms A] that she will continue to actively pursue the issue of the compliance certificate.

Evidence

Evidence Before The Court

On 15 February 2023, the Tribunal received written submissions from Ms Samuta and in addition to this evidence including, but not limited to documentation regarding the adoption of the applicant; identity documents, written statements from the applicant, sponsor, the maternal grandmother - [Ms B] and the maternal aunt – [Ms E]; financial records, photographs and copies of correspondence relevant to the adoption, visa or review applications.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal notes that the oral evidence given at hearing by the applicant, sponsor and [Ms B] was consistent with what they have provided in their written statements and with other documentary evidence filed with the Tribunal. The Tribunal considers the applicant, sponsor and [Ms B] to be credible and honest witnesses and that information provided by them can be viewed as reliable. The Subclass 802 visa is a visa for people inside Australia seeking a permanent visa on the basis of being the dependent child (natural, adopted or, in certain circumstances, step-child) of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen. A decision to refuse a Subclass 802 visa is a reviewable decision under s 338(2) of the Act. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Regulations. An extract of the Regulations is attached to this decision. Cl 820.212 The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a). At the time of application on 5 January 2018 the applicant was under 18 years of age, as such he satisfies one of the grounds to be regarded as a ‘dependent child’ merely by fact of his age and does not require consideration of whether he is also ’dependent‘ within the meaning of reg 1.05A. At the time of this decision, the applicant is [over 18] years of age. Where an applicant was under 18 at the time of application, they are also assessed at time of decision as if still under the age of 18, regardless of whether they have since turned 18. This reflects the applicant’s circumstances. Accordingly, cl 802.212(1)(a) is met at the time of application, and whilst not continuing to be met at the time of decision, this is only because the applicant has turned 18 (cl 802.221(1)(b). As referred to above, for the purposes of the Subclass 802 visa, a dependent child may be a natural, adopted or, in certain circumstances, step-child of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen. In the circumstances of this case the applicant claims to be the adopted child of a permanent resident of Australia. 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.Adoption criteria: 802.213

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:·cl.802.212 of Schedule 2 to the Regulations·cl.802.213 of Schedule 2 to the Regulations·cl.802.215 of Schedule 2 to the Regulations, and ·cl.802.221 of Schedule 2 to the RegulationsDavid BarkerMemberATTACHMENT – RELEVANT LAWMigration Regulations 1994Schedule 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.

Ratio Decidendi

Legal Principle Established

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