1902618 (Migration)

1902618 (Migration) [2021] AATA 3367 (28 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902618
MEMBER:Michael Cooke
DATE:28 April 2021
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(1) of Schedule 2 to the Regulations
·cl.802.213(5) of Schedule 2 to the Regulations

Statement made on 28 April 2021 at 8:41am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adoption –approval by a ‘competent authority’ in Australia – New South Wales Department of Family and Community Services (FACS) – intra-relationship adoption – Supreme Court of New South Wales – Adoption Order – implied approval – ‘customary adoption’ – customary adoption law in Vietnam – child-parent relationship – wholly and substantially reliant on adoptive parents – formal adoption not available – arrangement not contrived – residence requirement – compelling or compassionate circumstances – decision under review remitted
LEGISLATION
Adoption Act 2000 (NSW), ss 45, 45F, 91, 180
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04; Schedule 2, cls 802.212, 802.213
CASES
Henskens v MIBP [2017] FCCA 1890
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 29 January 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 March 2018. 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).
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 cl.802.213(4) was not met because a ‘competent authority’ had not approved the adoptive parent as a suitable adoptive parent for the applicant.
The applicant’s representative has provided the Tribunal with additional information concerning the case. This includes a comprehensive submission addressing the applicant’s ability to meet cl.802.213(5).
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements for adoption.
The applicant’s representative has submitted a helpful summary of the applicant’s history up to the time of refusal. It reads as follows:
Background
·The applicant was born on [date] in Viet Nam to biological parents; [Mr A] and [Ms B].
·A few months after the applicant’s birth, his parents abandoned him and left him in the care of his maternal grandmother, [Ms C] who became his carer.
·On 23 November 2012 the Applicant’s biological parents gave a written authority to the applicant’s grandmother to look after the applicant and be his guardian whilst he travels to Australia.
·The applicant came to Australia [in] April 2013 at the age of [age] years old. The applicant was accompanied by his grandmother who came as his student guardian.
·The applicant and his grandmother lived with his current adoptive parents at [address].
·In September 2013 the applicant’s grandmother received correspondence from Viet Nam that her mother residing in Vietnam fell ill. The applicant’s grandmother wanted to cancel her student guardian visa to return to Vietnam.
·On 25 September 2013 the applicant’s grandmother ceased her role as a student guardian and the sponsor became the applicant’s new guardian for the purpose of his student visa.
·Around August 2015 the applicant’s current Adoptive parents who are also the applicant’s uncle and aunt-in-law applied to be the applicant’s legal guardian according to the laws in Australia via the Federal Circuit Court of Australia (FCCA)
·[In] December 2015 the adoptive parents and her husband were granted a Parental Order from the FCCA giving rights of guardianship.
·On 15 March 2017 the applicant’s student visa ceased.
·On 28 March 2017 the applicant made an application for an Orphan Relative visa (subclass 837) on the basis that his biological parents were not able to be located. This application was later withdrawn on 13 March 2018 when the location of the biological parents was established, and the applicant no longer met the definition of an ‘orphan’.
·In April 2017 the adoption application with the New South Wales Department of Family and Community Services (FACS) were filed. Consequently, FACS declined to intervene as it was an intra-relationship adoption and, therefore, instructed the adoptive parents to seek the assistance of Counsels to file the Adoption application with the Supreme Court of New South Wales (Supreme Court).
·[In] February 2018 the Supreme Court granted the adoption, naming the sponsor and her spouse as the legal adopters and Adoptive parent On 28 March 2018 the applicant lodged a child (Residence) visa, subclass 802 on the basis of being the adopted child of the Australian citizen sponsor and who are also named as the applicant’s Adoptive parents on the Adoption Order by the Supreme Court.
·On 29 January 2019, the applicant’s child visa application was refused by the Department of Home Affairs for not satisfying regulations 802.213.
Adoption criteria
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.
The Tribunal finds, from the evidence before it, that 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.
The Tribunal finds that the applicant, therefore meets cl.802.212(1) of Schedule 2 to the Regulations
cl.802.213
The applicant through his representative has presented two propositions to the Tribunal regarding his adoption. Of course, it must be noted that he is now fully legally adopted according to Australian law through agency of the FCCA/Family Court (the guardianship approval) and the NSW Supreme Court (actual adoption). The Supreme Court also insisted that the adoption be facilitated with the assistance of a person attached to the Department of Family and Community Services (FACS) and called an ‘assessor’.
A particular requirement in subclause 802.213(4)(a) before the adoption is that ‘a competent authority’ in Australia must approve 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. ‘Competent authority’ in relation to an adoption is defined in reg.1.03 and (relevant to this case) is defined as ‘the child welfare authorities of an Australian State or Territory’. In the present case the relevant child welfare authority in New South Wales is the Department of Family and Community Services (FACS).
As the Tribunal understands from the applicant’s submissions, he filed an adoption application with FACS but was advised that FACS would not intervene. The reason for this is that it was an intra-relationship adoption. Thus, the adoptive parents were told to file the application with the Supreme Court and the Court subsequently granted the adoption. According to the FACS website, the role of the NSW Supreme Court in the adoption process is to effect the adoption orders.
In local adoption matters, Adoption Services or an accredited adoption service provider lodges the application at Court. Where it is necessary to make an application to the Supreme Court, intercountry adoption applicants may prepare the application themselves or engage a private solicitor (which happened in this particular case). Following the making of an Adoption Order in NSW, the Supreme Court provides DCJ with a certified copy of the Order and then authorises the NSW Registry of Birth, Deaths and Marriages to issue an amended birth certificate which then recognises the child as a member of the adoptive family. As such the role of the Supreme Court is to make the adoption orders which is, effectively, when the adoption occurs/is formalised.
The applicant’s representative has claimed in his submission that it can be implied that FACS approved the adoptive parents’ suitability given the history of the Supreme Court proceedings. Thus, as a consequence, he argues that cl 802.213(4)(b) can be met.
However, it is the view of the Tribunal that it must be satisfied that FACS has positively and expressly given its approval (see Henskens v MIBP [2017] FCCA 1890).
The applicant’s submissions also refer to a s.91 report prepared by an ‘assessor’ approved by FACS for the Supreme Court and the applicant’s representative’s submission relies on this as express approval by FACS. The Tribunal observes that the s.91 Court report is a requirement pursuant to s.91 of the Adoption Act 2000 (NSW). A report must be submitted by the applicant to the Supreme Court. This is prepared by the Secretary or an authorised person - the ‘assessor’ in this case. This report is part of the procedure for granting of the Adoption Order (the Court proceedings). It is different from the ‘assessment of adoption suitability’ process carried out by FACS itself earlier in the adoption process (performed under s.45 or s.45F of the Adoption Act 2000 (NSW)). The Tribunal is satisfied from the additional information provided to the Tribunal that the s.91 report was prepared by a FACS approved ‘assessor’.
The Tribunal has examined the rubric in Henskens along with the applicant’s summary of the case. The Tribunal notes that there are different facts - such as that (in the instant case) the applicant had the adoption approved by the Supreme Court - whereas in Henskens it only related to Family Court Orders and no official adoption was granted.
The applicant’s representative has attempted to distinguish that case. His argument is that the Tribunal can find that FACS had given effective approval before the adoption was granted. In support of this argument he points to the further involvement of FACS in relation to the Supreme Court proceedings - as a party to the proceedings - and its oversight of adoption processes without any objections to the grant of the adoption by the Supreme Court.
The applicant’s representative’s first premise (that FACS had approved the adoptive parents’ suitability before the adoption was granted by the Supreme Court by implication) is that:
the fact that it was accepted and relied on by the Court in making its adoption order, supports the construction that the Supreme Court should be construed as being included in the definition of “competent authority”.
The Tribunal, however, regards this claim as conjecture and prefers a plain reading of cl.802.213(4)(b).
The Court in Henskens confirmed that the approval of a prospective adoptive parent as a suitable adoptive parent by the ‘competent authority’ needs to be actual approval rather than an implied approval (which is what the applicant’s submissions claim). Furthermore, the Tribunal does not have access to the full judgment of Henskens as it is covered by a s.180 Adoption Act 2000 (NSW) restriction on publication order.
As the ‘competent authority’ is required to approve the suitability of the adoptive parents ‘before’ the adoption takes place (which is an earlier and separate part of adoption proceedings conducted by FACS) the Tribunal finds that the Supreme Court cannot be the ‘competent authority’ for the purposes of reg 1.03. The Tribunal, therefore, rejects the representative’s above first proposition as a basis for meeting cl.802.213(4)
The second wing of the applicant’s submission proposes that the applicant meets the requirements of reg.1.04 for a ‘customary adoption’ and that he can then satisfy cl.802.213(5).
The Tribunal notes that subclause 802.213(5) requires that 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.
The key requirements for adoption in reg 1.04 require that the adopter has assumed a parental role in relation to the adoptee, before the adoptee turned 18 years old and the role was assumed under certain arrangements. The requirement for the arrangements allows for other arrangements entered into outside Australia which are taken in the nature of adoption (reg 1.04(1)(c)), referred to as ‘customary adoption’. The requirements to satisfy a customary adoption are found in reg 1.04(2).
Findings pursuant to reg.1.04(2)
The Tribunal finds that the key requirements for a ‘customary adoption’ are the following:
·the arrangements must have been made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter;
It is evident from the history of the applicant that he was abandoned by his parents and fell into the care and control of his grandmother who became his ‘carer’. Formal adoption by a grandparent is not permitted under Vietnamese customary law (see Article 13, item 6 of Law No. 52/2010/QH12) which prohibits ‘grandparents adopting their grandchildren or siblings adopting one another’.
On 23 October 2013 (after some time living in Australia) the applicant’s biological parents gave a written authority to the applicant’s uncle and aunt-in-law in Australia granting them rights to care for the applicant. This authority was given in accordance with the customary law in Vietnam by granting the ‘surrogate’ the care of the applicant via a written authority. This authority is given when the biological parents are unable to protect and take care of the child - as patently was the case of the applicant. (see Article 63 of the Constitution of the Socialist Republic of Vietnam).
Importantly for the Australian-based adoptive parents (his aunt and uncle) the customary adoption law in Vietnam allows intercountry adoption where a foreigner who resides outside Vietnam can adopt a Vietnamese citizen residing overseas if (b) “he/she is the natural aunt or uncle of the to-be-adopted child”; (Article 28, Law No.52/2010/QH12).
The Tribunal is satisfied, therefore, that the applicant meets the criterion in subclause 1.04(2)(a).
·the child-parent relationship between the adoptee and the adopter must be significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements;
The sponsor (who is one of the applicant’s adoptive parents) has raised the applicant since the age of [age] years old - a period of over 8 years. His adoptive parents were legally granted the guardianship of the applicant in 2015 in the (now) Federal Circuit Court. Later, his uncle and aunt became (legally) his ‘adoptive parents’ in 2018 via the approval of the Supreme Court of NSW.
The Tribunal is satisfied that the applicant is wholly and substantially reliant on his adoptive parents since September 2013 whence they first took on the role of student guardian. He applied for the visa (the subject of this review) on 13 March 2018. Therefore, the Tribunal is satisfied he is and was dependent on his adoptive parents at that time. It is logical that the Supreme Court decision was based on the fact that the applicant’s adoptive parents make all the major life decisions regarding his welfare, education and social upbringing. Importantly, hurgently e is also still a minor.
Self-evidently, the applicant has not had a close relationship with his biological parents since he was born. Initially, they abandoned him when he was just a few months old. He has not seen his biological parents and they have not attempted to contact him since then. His grandmother initially was his guardian and carer. She brought him to study in Australia as a student guardian but due to health issues with her mother she returned to Vietnam. The applicant was then entrusted to the care of his uncle and aunt. The applicant continues to have a relationship with his grandmother who has visited him many times in Australia. They also converse on the telephone now and again – the Tribunal is informed. However, the relationship between the applicant and his grandmother can readily be seen not to be a parental relationship but rather a grandparent - grandchild type relationship.
Based on this personal history the Tribunal finds that subclause 1.04(2)(b) is satisfied.
·formal adoption must not have been available under the law of the place where the arrangements were made or not reasonably practicable in the circumstances;
The applicant was not formally customarily or formally adopted in Vietnam because ‘formal adoption (would) not have been available under the law of the place where the arrangements (his care by his grandmother) were made’. In fact, his grandmother had no legal entitlement under Vietnamese adoption law to adopt him. Ironically, according to Article 28 in Vietnamese Law (No. 52/2010/QH12) the adoption by his adoptive parents would likely now be granted in Vietnam pursuant to this Vietnamese adoption law. Furthermore, to assist this possibility this Vietnamese law has no requirement for the adoptive parents to be residing in Vietnam for any particular period before the adoption.
The Tribunal is satisfied that the applicant meets the criterion in subclause 1.04(2)(c)(i).
·the arrangement was not contrived to circumvent an Australian migration requirement.
The applicant’s representative advises that the applicant travelled to Australia on a student visa with his grandmother in 2013 with the intention of undertaking schooling in Australia. It was only when the applicant’s grandmother (his Department approved student guardian) had to suddenly return to Vietnam to care for her own elderly mother that she decided to transfer the student guardianship to her son (who is the applicant’s uncle) and his wife who then took over the ‘daily care and control’ of the school student applicant. The representative has opined that if it were not due to the applicant’s grandmother’s sudden departure, it would not have been in the minds of the uncle and his wife to adopt the applicant. He claims this is evident through the many reports which were submitted to the Supreme Court and Federal Circuit Court.

The representative insists that the adoption was not something planned before the applicant came to Australia. He claims the evidence of this is that the applicant lived with the sponsor from 2013 - but it was not until June 2016 that his uncle and aunt decided to formally adopt him. He did not apply for the visa (the subject of this review) until 2018. The Tribunal is satisfied that the representative’s argument is bolstered by this somewhat lengthy period living together in the same country before any talk of adoption commenced. Having examined the history of the case the Tribunal is satisfied, on balance, that the adoption of the applicant happened coincidentally whilst he was living in Australia.
Thus, the Tribunal is satisfied, therefore, that the notion that the arrangement was ‘contrived to circumvent an Australian migration requirement’ is not the case.
The Tribunal finds that subclause 1.04(2)(c)(ii) can be satisfied.
The Tribunal has had the benefit of additional information and finds that the requirements overall for a customary adoption in reg 1.04(2) are met.
As a result of this above finding the first requirement (found in subclause 802.213(5)(a)) is now met. The Tribunal will now consider whether the remaining sub-paragraphs in cl.802.213(5) can also be met.
The Tribunal notes that cl 802.213(5)(b) requires that 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;
It can be readily seen from the history of the case that the adoptive parent had not been residing overseas for more than 12 months and cannot meet cl 802.213(5)(b)(i).
His representative has argued for Tribunal waiver of the criterion via subclause 802.213(5)(b)(ii) as follows:
However, there are compelling and compassionate circumstances which we respectfully ask the Tribunal to consider for not meeting subclause 802.213(5)(b)(i). As explained above, this includes the fact that the applicant and his adoptive parents were both residing in Australia at the time of the adoption because the adoptive parent was caring for him in Australia.
Due to the above compelling and compassionate circumstances, we respectfully request that the Tribunal deems it be inappropriate for the Adoptive parent to be overseas when the adoption occurred, given that the applicant was in Australia at that time and completing his schooling.
The sponsor has argued through his representative that his adoptive parents had ‘compelling’ circumstances in the sense of ‘forceful’ circumstances for not residing in Vietnam. Firstly, the sponsor had a job and established life in Australia with his wife and guardian/adopted son and the responsibilities this entails. Secondly, as a result of the guardianship granted to him by the Court, he had the added responsibility to ensure the applicant continued to perform his studies which were the basis for the grant of the Student visa to him. This is a further ‘forceful’ or ‘compelling’ circumstance.
The Tribunal is satisfied that the applicant can meets another of the waiver requirements based on the aspect of ‘compassionate circumstances’ as well. ‘
Compassionate’ as a word signifies ‘feeling or showing sympathy and concern for others’. The Tribunal is satisfied that the adoptive parents’ daily life and the applicant’s own school studies (as a primary school age child) were potential and actual issues of concern to the adoptive parents when contemplating a 12 month stay in Vietnam. Plainly the adoptive parents’ view was that they could not disrupt the applicant’s (compulsory) studies and their own home life to return to Vietnam for 12 months. The Tribunal is satisfied, on balance, that such a (potential) disruption would have been counterproductive to the applicant’s life and equally to that of his parents and, therefore, a ‘compassionate circumstance’ in that it involved ‘feeling or showing sympathy and concern for others’.
Furthermore, such an arrangement (return to Vietnam) had the potential to be construed as ‘the arrangement was contrived to circumvent an Australian migration requirement’ and might impugn the ability to meet the criterion in 802.213(5)(c).
The Tribunal accepts that there are ‘compelling and compassionate circumstances’ in the applicant’s case which can ground waiver of subclause 802.213(5)(b)(i).
The Tribunal finds that the subclause 802.213(5)(c) is not applicable as the adoptive parents were not residing overseas.
In the matter of subclause 802.213(5)(d) the Tribunal is satisfied (from the additional evidence before it) that the adoptive parents have lawfully acquired full and permanent parental rights by the adoption which is evidenced by the Adoption Order issued by the Supreme Court.
Accordingly, cl.802.213 is met.
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(1) of Schedule 2 to the Regulations
·cl.802.213(5) of Schedule 2 to the Regulations
Michael Cooke
Senior 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.

[2021] AATA 3367

28 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Jurisdiction

Appeal