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

1. 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).

2. 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).

3. 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.

4. 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 this latter requirement.

5. The applicant appeared before the Tribunal on 16 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], his  adoptive mother and sponsor, and [Ms B], the maternal grandmother. 

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

8. 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].

9. 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.

10. 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.

11. According to Departmental records, in the 12 months prior to the adoption the sponsor spent 46 days outside Australia.

12. 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.

13. 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].

14. The review application was lodged with the Tribunal on 16 November 2018.

15. 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.

16. On 31 August 2021, the Tribunal sent the applicant and sponsor an invitation to participate in a hearing on 22 September 2021.

17. 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.

18. The Tribunal considered that there were grounds to grant the postponement request and requested regular updates from the applicant’s representative with regard to the progress in the legal proceedings referred to by Mr Debney.

19. On 24 November 2021, the Tribunal wrote to Mr Debney requesting an update as to any progress in the recognition by the relevant authorities in NSW of the applicant's status as the adopted child of the sponsor. On 25 November 2021, Mr Debney, by way of email informed the Tribunal that the applicant  had instructed lawyers in Fiji to expedite the matter. Mr Debney indicated that he would inquire as to the current position and revert to the Tribunal.

20. The Tribunal did not subsequently receive any further update from Mr Debney or the applicant and on 27 April 2022 wrote to the applicant, pursuant to s 359(2) of the Act, indicating that it intended to list the matter for hearing and extended a further request that the applicant provide information in support of their application for a review of the decision to refuse an application for a Child (Residence) (class BT) Child (subclass 802) visa.

21. On 10 May 2022 the Tribunal received an email from Mr Debney with the following information.

    1. I am glad to be able to report that there has been real and meaningful progress on the process of recognition in Australia of [the applicant]’s status as the adopted child of [Ms A]. The Registrar will note from the file that [Ms A] has been making serious efforts to obtain the Compliance Certificate needed for the consideration of the Australian Central Authority under the Hague Convention, My earlier submissions to the Registrar on 15 September 2021 outline in some detail the relevant issues and the difficulties experienced in Fiji.
    2. Finally, on 28 April 2022, [Ms A] has received advice from Jennifer Poole, the Permanent Secretary of the Fiji Ministry of Women, Children and Poverty Alleviation that the Ministry (also the Fiji Central Authority under the Hague Convention) has decided to support the request for the Compliance Certificate and is now in direct, albeit only recent, contact with the NSW Central Authority under the Convention. Copies of the relevant email string are provided below for the Registrar’s information:

    [email string provided]

    3. The Registrar will have noted that the matter is therefore currently, and for the first time, under consideration by the NSW Central Authority under the Hague Convention, namely, Adoption and Permanency Services Department of Communities and Justice.
    4. I am now following up with the NSW Department and will do what I can to expedite the matter.
    5. I respectfully submit that the Registrar should, in the current circumstances and in light of the progress made towards an administrative solution to the matter under the Convention, continue the postponement of the matter pending the outcome of the application under the Convention. As previously submitted. 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. That submission is now strengthened by the progress towards recognition outlined above.

22. On the basis of these submissions the Tribunal considered the postponement request reasonable and consented to a further delay in listing the matter for hearing.

23. On 6 July 2022, the Tribunal requested an update as progress in relation to the recognition by the relevant authorities in NSW of the applicant's status as the adopted child of the sponsor.  On 21 July 2022 Mr Debney, by way of email, indicated the matter was still under review by the NSW Central Authority and that he would advise the Tribunal further when he heard from them.

24. The Tribunal requested a further update from Mr Debney on 5 September 2022 and was informed that the representative had heard nothing further from the applicant or his sponsor.

25. On 10 October 2022, the Tribunal sent a further letter, pursuant to s 359(2) of the Act, informing the applicant that it was mindful of not postponing the review indefinitely and that it intended to list a hearing in this matter before the end of the year. The letter requested that evidence be provided as to the progress of having the applicant’s adoption recognised by the relevant authorities in New South Wales and other information relevant to his claims in this matter.

26. On 24 October 2022, the Tribunal received a response from Mr Debney in which he indicated that he had contacted the Acting Director of Intercountry Adoption in the NSW Department of Social Services and received his response which, in summary, was that the he had provided the  NSW Department of Communities and Justice’s position on this case to the Fijian Central Authority, the Ministry of Women, Children and Poverty Alleviation on 31 May 2022 and was unaware that Mr Debney had not been informed of the outcome. Mr Debney indicated that he had been attempting to contact the sponsor to review with her the legal aspects of the NSW response. The NSW Department of Communities and Justice’s position and implications flowing from this position are discussed further in relevant sections of this decision.

27. The Tribunal, mindful of the Tribunal's statutory objective, as outlined in s 2A of the AAT Act, considered there to be no reasonable basis to further postpone the review and on 27 October 2022 sent the applicant and sponsor an invitation to attend a hearing on 13 December 2022.

28. On 24 November 2022, the Tribunal received an email from Mr Debney indicating that BridgePoint Group Legal was no longer acting in this matter and provided details of a solicitor who would henceforth be representing the applicant, Ms Jennifer Samuta of Samuta McComber Lawyers.

29. On 7 December 2022, the Tribunal wrote to the applicant, noting that whilst it was advised Mr Debney was no longer representing the applicant, the Tribunal had not  received official documentation authorising or requesting that a new representative be appointed, namely, Ms Samuta.

30. On 8 December 2023, the Tribunal received an email from the sponsor in which she requested a postponement in relation to the hearing scheduled for 13 December 2022 on the grounds that she had sought new representation for the applicant, but was advised that Ms Samuta was shortly to go on Christmas leave.  The Tribunal consented to the postponement request due to concern that to not do so would result in the applicant not having the assistance of a representative at hearing. A further hearing was accordingly listed for 16 February 2023.

31. On 6 February 2023 the Tribunal received a form, signed by the applicant appointing Ms Samuta as his authorised representative / recipient.  On this date the Tribunal also received a request, dated 2 February 2023,  to release material from the Department of Home Affairs (the Department) and the Tribunal files, under the provisions of s 362A of the Act. Partial copies[1] of the requested information were sent, by email, to Ms Samuta on 9 February 2023.

    [1] Sections of both the Department and Tribunal files were partially excluded from disclosure under Australian Privacy Principle (APP 6) set out in Schedule 1 of the Privacy Act 1988.

32. 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

33. 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.

34. 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

35. 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).

36. 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.

37. 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).

38. 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.

1. 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

2. 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.

3. Clause 802.213 (1)(a) requires that the applicant was under 18 at the time of adoption. The applicant is currently [over 18] years old. According to the information on his passport and the Births, Deaths and Marriages Registration Certificate issued by Registrar General’s Office, Suva, Fiji the applicant was born on [Date]. He therefore turned 18 years on [Date], [prior] to the date of application. The Tribunal is satisfied therefore that the applicant was under 18 years at the time of adoption.

4. 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. The Tribunal is aware of the concerted efforts made by the sponsor and her representatives to overcome the particular circumstances whereby adoptions formalise din Fiji have not in recent years met the requirements of the Hague Convention on Intercountry Adoption. The Tribunal is satisfied there has been no attempt on the part of the sponsor to circumvent these requirements, or to act out of any motivation but her perception of the best interests of the applicant and his younger brother. Nonetheless, as confirmed with the sponsor and Ms Samuta at the hearing, the adoption did not take place in accordance with the Adoption Convention and there is no adoption compliance certificate in place. Accordingly, clause 802.213(2) is not met.

5. 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.

6. Clause 803.213 (4), the third of the alternative criteria, is only applicable when there has been approval by a competent authority in Australia. This is a further avenue explored by the sponsor and her previous representative, Mr Debney, who on 24 October 2022 notified the Tribunal that the relevant authorities in NSW had advised in no uncertain terms that their approval for the adoption was not forthcoming. As there has been no such approval, clause 802.213 (4) does not apply[2].

   [2] Response to inquiry received by Mr Debney on 18 October 2022 from the Department of Social Services on advice from the NSW Department of Communities and Justice.

7. 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 Fiji.

   Clause 802.215

8. 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).

9. Clause 802.215(b) 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.

10. 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.

11. 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”.

12. There is no specific definition of 'compelling' or 'compassionate' in either 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.[3] To be ‘compelling’ the reasons in question must force or drive the decision-maker irresistibly to some end.[4] 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.[5]

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

    [4] 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].

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

13. Circumstances which the Tribunal has taken into account when assessing whether, in the particular circumstances of this case, exercising the discretion to waive the 12 month requirement is warranted.

14. At hearing the sponsor and [Ms B] gave plausible and credible evidence that upon the death of the sponsor’s father she and her sister [Ms E] took on the role of providing financial support to a number of members of their extended kinship systems. They explained that this was a role previously provided by their father, who was a qualified [Occupation] and respected for his service with the Fijian [Employer] and [International organisation].  The sponsor explained that she felt it was her responsibility to assume the role of a breadwinner remitting funds to various family members out of respect for her father and mother and also due to her having had the benefit of education and career opportunities from her permanent residence in Australia since 1986.

15. The Tribunal is satisfied that the sponsor has provided a plausible explanation as to why it would not have been viable for her to have stayed in Fiji, or otherwise offshore from Australia over the 12 months preceding the formal adoption of the applicant in [2016]. She explains that she simply could not, given her responsibility to financially support the applicant, his brother, her mother and other relatives, afford to have been without the income from her employment in Australia. In support of this contention the sponsor highlighted the difference in the sort of income she could have earned in Fiji and made reference to the average income being the equivalent of around $4.00 per hour and even a good income providing only around $10.00 per hour. The sponsor also referred to the need to fund [Ms B]’s medical treatment and periodic return trips to Fiji in the period she was recuperating from [major surgery], with these trips offshore necessitated by conditions attached to [Ms B]’s Visitor visa.

16. The Tribunal accepts that [Ms B] developed a life threatening illness as a consequence of suffering an [injury], which resulted in [surgery] with a protracted recovery and rehabilitation pathway due complications associated with her [medical] condition and recurrent infections in the tropical climate of Fiji. The Tribunal is satisfied the sponsor has provided a plausible explanation as to why she and her sister brought [Ms B] to Australia to facilitate her recovery from the [surgery]. The Tribunal considers these factors, when considered cumulatively provide a plausible and reasonable explanation for why the sponsor remained working in Australia for much of the 12 month period prior to [2016] when the formal adoption orders for the applicant were made in the family Division of the Magistrates Court in Fiji.

17. A further factor which the Tribunal considers having some relevance is that the applicant was onshore for the majority of the 12 months preceding the adoption, arriving in November  2015 and not in fact departing since that date.  The effect of this being that he was in close connection with and under the care and support of the applicant  for most of the 12 month period preceding the adoption.  The Tribunal acknowledges and has taken into account that the connection between the applicant and the sponsor extends well beyond the aforementioned period and that it has existed since the time  of the applicant’s birth in [Year].

18. The Tribunal accepts the sponsor has, along with [Ms B], had an important familial connection with the applicant throughout his life.  The Tribunal accepts the contention that the significance of the bonding and attachment between the sponsor, [Ms B] and the applicant extends beyond that which may have come along with their being members of the same extended kinship system. Influencing the Tribunal’s view in relation to this factor is the evidence, which the Tribunal considers plausible, of the disruptive and problematic early childhood caregiving environment of the applicant and his siblings, where they were exposed to neglect and abusive experiences.

19. The Tribunal accepts the evidence of the applicant, sponsor and [Ms B] as to the applicant’s experiencing a more stable home environment when in the care of [Ms B] prior to her relocation, for recuperation and rehabilitation purposes, to Australia in 2013. The Tribunal considers plausible the contention that disruption caused by [Ms B] becoming very unwell and relocating to Australia, in conjunction with the loss of his maternal great grandmother, occurred at a developmentally significant age for the applicant, namely the transition from childhood to early adolescence.  The Tribunal considers plausible and accepts the applicant’s evidence that he started drinking alcohol and making less than pro-social choices  following [Ms B]’s relocation to Australia in 2013.  The Tribunal also accepts that  the sponsor’s subsequent endeavours to bring the applicant and his younger brother to Australia reflected the motivation and intention of the sponsor, her sister [Ms E] and [Ms B]’s wish to remove the boys from a problematic living environment and restore for them a more nurturing and safe care giving environment.

20. The Tribunal considers it relevant that the applicant has responded to the stability the strong female figures of his adoptive mother, aunt and grandmother have provided for him in Australia since his arrival in November 2015.  The Tribunal notes he has since that time  completed secondary school and is currently undertaking a traineeship in his aunt [Ms E]’s [business].  The Tribunal is satisfied that the applicant’s fear as to what his circumstances would be, should he be required to return to Fiji, where he would lack the structure and support provided for him by the sponsor and the other strong attachment figures he has in Australia, is reasonable and would appear well founded.  

21. For these cumulative compelling and compassionate circumstances it is the Tribunal’s view that there are compelling and compassionate circumstances why the 12 month requirement should not apply. Therefore the applicant meets clause 802.213(5)(b)(ii).

22. Finally, in order to meet the adoption criteria, the adoptive parents must have lawfully acquired full and permanent parental rights by the adoption. The Tribunal has reviewed the adoption orders for the applicant which were made in the Family Division of the Magistrates Court in Fiji on 31 May 2016 and all statements and forms in this review.  I am satisfied the adoptive parent named in the adoption papers has lawfully acquired full and permanent parental rights by adoption.

23. 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).

24. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

25. 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

    David Barker
    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.