1910993 (MIGRATION)

1910993 (MIGRATION) [2021] AATA 4829 (9 AUGUST 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1910993
MEMBER:Michael Cooke
DATE:9 August 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 of Schedule 2 to the Regulations
·cl.802.213(1) of Schedule 2 to the Regulations
·cl.802.221 of Schedule 2 to the Regulations

Statement made on 09 August 2021 at 3:08pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adoption approved by competent authority – applicant grand-daughter of sponsor’s deceased wife – Department of Communities and Justice does not involve itself in inter-family adoption –customary adoption by sponsor’s wife consented to by applicant’s mother and approved by authorities in home country and court in Australia – applicant’s residence, education and activities in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), r 1.03, 1.04; Schedule 2, cls 802.212, 802.213, 802.221
CASES
Hafza v Director General of Social Security (1985) 6 FCR 444
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
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 24 April 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 15 June 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(1).
An Invitation pursuant to s.359(2) was sent to the applicant on 3 June 2021.
The applicant (through her representative) responded (following an extension of time) to the Invitation by providing the following information:
·A submission addressing the delegate’s decision and his findings
·A trove of additional documentation addressing the adoption and personal history of the applicant and her adoptive parents.
·Other personal indicia such as a birth certificate and translated Thai documentation concerning the adoption of the applicant.
The applicant (on 28 July 2021) responded further to the Tribunal’s invitation made at the hearing with a comprehensive submission addressing the salient issues in the case. He also addressed the applicant’s potential ability to meet cl.802.212(5) of Schedule 2 to the Regulations.
The delegate initially refused to grant the visa on the basis that cl.802.213(4) was not met because the delegate found that the applicant did not have her adoption approved by ‘a competent authority’ as so defined in reg.1.03. A ‘competent authority’ for the purposes of this application is the NSW Department of Communities and Justice (formerly FACS). The applicant’s Australian adoption has been approved by the NSW Supreme Court.
The applicant appeared before the Tribunal on 25 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s adoptive father ([Mr A]) and her brother ([Mr B]).
The applicant was represented in relation to the review by her 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 can meet the requirements for adoption found in cl.802.213(1) of the Regulations.
The history of the applicant’s adoption as explained by her adoptive father
I, [Mr A], of [Address], make the following statement in support of [the applicant]'s appeal case:
Background and history
I am an Australian citizen born on [Date 1].
I am an [Occupation] with [Employer].
I am the sponsor of [the applicant]'s 802 visa application. I was married to [the applicant]'s grandmother, [Mrs A] (nee [C]), who passed away [in] April 2018.
I first met [Mrs A] in Thailand in 1991 when I was on a business trip. I then moved to Thailand permanently in 1993 and got married with [Mrs A] [in] 07/1996.
I took over the responsibility for caring for [Mrs A]'s biological daughter, [Ms C] October,1993, including paying all her expenses and played a paternal role in [Ms C]'s life.
On [Date 2], the biological son of [Mrs A] and I, [Mr B], was born in Thailand. He is an Australian citizen by descent.
Until October 2005, [Mrs A] and I lived in Thailand together and then relocated to Sydney.
On [Date 3], [the applicant] was born in Thailand. She is the biological daughter of [Ms C] (the mother) and [Mr D] (the father) who separated shortly soon after [the applicant]'s birth.
[Mr D] has had no contact with [the applicant] ever since she was born. [The applicant] also has a biological brother called [Mr E].
When [the applicant] was about six months old, [Mrs A] and I travelled to Thailand as [Ms C] was struggling caring for two children being a single mother. We also started providing financial support to [the applicant] and increasingly took an active role in her care arrangements.
We needed to come back to Australia as my father had a [Disease 1] which meant that he needed my support in Australia. [Mrs A] and I arranged for our extended family members to care for [Mr E] and [the applicant] and we continued to provide financial support and paid frequent visits.
In 2008, [Ms C] entered into a relationship with [Mr F] but he was not willing to provide any support for the children of [Ms C]'s previous partner.
[Mrs A] and I stopped supporting [Mr E] as he moved to live with his cousin's family and settled in well. But we continued to support [the applicant] and visited Thailand very frequently. We also communicated with [the applicant] regularly via Skype between our visits.
[Mr B] also travelled with [Mrs A] and I and [Mr B] developed a close sibling relationship with [the applicant].
[Mrs A] and I then consulted both Thailand and Australian government about how to bring [the applicant] to Australia so she could live with us as part of our family.
[The applicant]'s arrival in Australia
In 2014, we applied to the Thailand Supreme Court for a Parental Responsibility Order for [the applicant] and the order was ultimately made [in] March 2015.
The legal process in getting the order required [Mrs A] and I to be interviewed by the Thai family authorities on at least 2 occasions and we needed to satisfy them that we were appropriate adopting parents and it would be in the best interests of the child. [Ms C] also consented to the order being made.
In March 2014, [Mrs A] and I brought [the applicant] to Australia on a three month visitor visa during which I applied for permission to enrol her at a local government school. She was granted permission and started at [Public School]. She settled into school well and started making new friends.
In November 2015, [the applicant] returned to Australia on a student visa and started living with [Mrs A] and I.
Adoption Order Application
In late 2016 to early 2017, [Mrs A] and I started thinking about getting [the applicant] to stay in Australia permanently as a member of our family and we were advised by a family lawyer to apply for an adoption order with the Supreme Court of New South Wales.
In early 2017, [Mrs A] and I lodged our application for adoption order at the Supreme Court of New South Wales through [Lawyers].
Shortly after that, [Lawyers] engaged the service of a contracted adoption assessor on the FACS panel who visited [Mrs A] and I twice for that purpose, on 12 March 2017 and on 15 November 2017 respectively. An assessment report was then submitted to the Supreme Court of NSW in support of the adoption application.
On [Date 1] May 2018, the Supreme Court of NSW issued the adoption order of [the applicant] to [Mrs A] and I.
On [Date 2] May 2018, the NSW Registry of Births, Deaths and Marriages issued a birth certificate, listing [Mrs A] and I as parents.
Application for Subclass 802 visa
On 15 June 2018, I lodged an application for a subclass 802 visa for [the applicant]. The application was eventually refused on 24 April 2019.
[The applicant]'s current situation
[The applicant] has been in the direct care of my late wife and I since 2014 and has lived in Australia and attended school here since November 2015.
[The applicant] is currently attending [High School] in Year [Number] and has been making remarkable progress at school. She has been receiving multiple rewards, doing [Sport 1] four times a week and attending competitions on weekends. She is also a member of the local [Sport 2] squad based at [Suburb] [Sport 2] club. She used to attend [Public school] from year 3 to year 6.
[The applicant] currently lives with me in my 4 bedroom home at [Address] with a big backyard and BBQ area. She has her own bedroom.
[The applicant] considers my son [Mr B] and myself to be her close family and I consider her as my own child and provide for her in the same manner as I have for my other children. It was the wish of my wife that [the applicant] be afforded security, a home life, safety, and an education that she and every other child deserves. It is my focus that I provide this for her to the best of my ability.
[The applicant] has been in Australia for a large portion of her life. All of her friends and her social network are in Sydney and her way of life is that of a normally adjusted teenager born in this country.
The Hearing
The Tribunal discussed with the applicant’s father the case and the information which had surfaced from the s.359(2) Invitation. The juniority of the applicant meant that essentially the hearing was conducted with the sponsor/adoptive father ([Mr A]) who was assisted at different phases during the hearing by his representative - [Mr G].
The Tribunal observed that, tragically, the applicant’s adoptive mother (and grandmother - [Mrs A]) had passed away some years ago from [Disease 2].
The Tribunal informed the sponsor that it had finalized a recent Subclass 802.213(4) case where the issue of the migration law impasse sourced from the ‘competent authority’ requirement for adoption was raised.
The Tribunal explained that a child could be fully adopted through the Supreme Court - with the facilitation of the NSW Department called the Department of Communities and Justice (previously FACS) – but because the Department of Communities and Justice ( the ‘competent authority’ as so defined) refused to involve itself in authorising inter-family adoptions it directed applicants to the Supreme Court for processing such an adoption.
This decision effectively prevented the applicant gaining the required approval from ‘a competent authority’ required to satisfy cl.802.213(4). Such was the instant case as far as the delegate was concerned. This prevented a successful adoption pursuant to cl.808.212(4).
In view of this earlier experience the Tribunal directed the sponsor and the applicant’s representative towards the alternative criterion in cl.806.212(5). A recent Tribunal decision to set aside a refusal (made for similar reasons pursuant to cl.802.213(4)) occurred when the applicant was able (via a comprehensive and well researched submission) to prove he could meet this particular criterion. This required, importantly, proving he could meet the ‘customary adoption’ requirements found in reg.1.04(2).
In referring to the criterion cl.80.212(5) the Tribunal alerted the applicant, her father and her representative to the onerous requirements of that particular criterion - particularly if it involved the issue of ‘customary law adoption’ found in reg.1.04(2). There would need to be research made into the law of Thailand to establish (for instance) if customary law regarding adoption existed and whether (if proposed) it could form the basis fallowing the applicant to meet reg.1.04(2).
The Tribunal then explored the documentation submitted by the parties. It noted the possibility that the applicant might (effectively) have been formally adopted in Thai law prior to her Australian approved adoption by the Supreme Court. The Tribunal drew this conclusion from reading the authorized translation of the Thai original documents in the s.359(2) response. It appeared from the declaration (made in the Thai Court Order) that it was more than a simple ‘guardianship’ declaration favouring the adoptive parents. It appeared that, in fact, the document established an essential ‘sundering’ of the parent/child relationship had taken place in the Thai Court ruling.
The Tribunal alerted the parties that the ‘sundering’ of the parent-child relationship is the elemental aspect of adoption. This is where the biological parents permanently lose their effective right of ‘care and control’ of their child to other authorised persons (the adoptive parents).
The Tribunal then raised the issue of the Adoption Convention. It did a simple Google search and established that Thailand was a party to the Adoption Convention.
The sponsor ([Mr A]) in his oral evidence then outlined (for the Tribunal’s edification) the ‘back story’ behind the Thai adoption of the applicant. This important information had not appeared readily in the submitted paperwork but enabled the Tribunal to have a greater understanding of the case.
He said that, firstly, all the protocols of the Adoption Convention had been activated by the Thai authorities. It was all very proper. It involved significant interaction with the responsible Thai authorities. Along the way they employed seasoned legal professionals to assist him and his (late) wife [Mrs A]. There were several in-depth sessions with the Thai Ministry officer charged with vetting the adoptive parents (like the Department of Communities and Justice Contracted Adoption Assessor in the Australian scenario). Significant attendant paperwork flowed from the Thai Court Oder all of which helped to smoothly facilitate the Australian end of the adoption and all of which met Convention standards.
The Tribunal was intrigued that the Royal Thai logo was stamped on the Supreme Court Orders. [Mr A] explained that the applicant required a new passport, so the local consular staff needed to see the paperwork and stamp it for authorization purposes.
In view of the various issues it had raised the Tribunal allowed the parties additional time to submit further submissions on the potential ability of the applicant to meet the requirements in cl.806.213(5) of the Regulations.
Adoption criteria
Clause 806.212(5)
(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.
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.
Customary Adoption and Reg. 1.04 (2)
For the purposes of paragraph (l)(c), arrangements are taken to be in the nature of adoption if:
·the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
·the child-parent relationship between the adoptee and the adopter is 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; and
the Minister is satisfied that:
formal adoption of the kind referred to in paragraph (l)(b):
·was not available under the law of the place where the arrangements were made; or
·was not reasonably practicable in the circumstances;
and
·the arrangements have not been contrived to circumvent Australian migration requirements.
The requirements for adoption in Thailand are that:
- If the adopted is a minor, the adoption normally requires the consent of the biological parents. (Section 1598/21 of the Civil and Commercial Code of Thailand (CCCT));
- At the time a child is adopted, the natural parent loses their parental power. (Section 1598/28 of the Civil and Commercial Code of Thailand (CCCT)).
The applicant through her representative has provided a complete chronological outline of the adoption history of the applicant. This discloses importantly that:
·The consent of the parents to the legal guardianship and effectively the customary adoption was secured as per the Thai Code cited above.
·Documentation evidencing that the essential requirement (loss of ‘parental power’) was secured as per the Thai Code cited above.
·The applicant’s mother formally renounced her parental rights to [the applicant] (the applicant) by Thai Court process. The Thai Court then issued an Order effecting same [in] March 2015.
·There was a severing of the parental right in 2008 when [Mrs A] (now deceased) (the applicant’s grandmother) adopted the applicant customarily - following her abandonment by her natural mother ([Ms C]) and which was officially formalised by law in the 2015 Order.
·The deprivation of the parental power of [Ms C] (the applicant’s biological mother) in this situation confirms the arrangements for the applicant mirror the adoption law of Thailand vide Section 1598/28 of the Civil and Commercial Code of Thailand (CCCT).
- Thailand adoption law allows grandparents to adopt their grandchildren. In fact, the adoptions by grandparents (and close or blood relatives) are favoured under Thai law vide section 19 of the Child Adoption Act B.E. 2522 (1979).
- The Tribunal observes that the Thai Government favours domestic adoptions, over international adoptions. If an application had been made for an inter-country adoption (the [As] intended to eventually live in Australia) the waiting time was likely to be 6 plus years vide Adoption Australia 2014-15, Australian Institute of Health and Welfare, at page 19.
- [Mr A] (the sponsor), along with his deceased wife, had been supporting the applicant since she was about one year old. [Mr A] is the step-grandfather of the applicant and, thereby, a close relative. He is now formally her adoptive father as evidenced by the NSW Supreme Court Order dated [May] 2018 and the NSW issued birth certificate for [the applicant], which were both submitted to the Tribunal on 23 June 2021.
- The applicant was, sadly, abandoned by her biological parents. Her biological father separated with her biological mother soon after she was born and never had any contact with the applicant. The biological mother is now in another relationship. She was deprived of her parental rights over the applicant by the Thai authorities - with her own consent. [Mr A] is, therefore, now in a closer relationship with his adopted child compared to her biological parents in Australian law. His late wife ([Mrs A]) was, at the time, in a closer relationship with her adopted child compared to the applicant’s biological parents in Thai law.
- The whereabouts of the biological father of [the applicant] was unknown at the time as he has had no contact with the family since he separated with [Ms C] soon after [the applicant] was born. In 2008, [Ms C] entered into another relationship. Her new partner refused to provide any care or support to the applicant. She was, therefore, unable to fulfill her parental responsibilities to the applicant. It was for the above reasons that [Mr A] and [Mrs A] entered into the customary adoptive arrangements - [Mr A] informs.

The Tribunal finds from the evidence before it that the applicant was customarily adopted pursuant to reg.1.04(2) because the evidence discloses that the applicant was adopted:
·in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter (Thailand).
·the child-parent relationship between the adoptee and the adopter is/was 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.
- formal adoption of the kind referred to in paragraph (l)(b) of reg.1.04(2) was not reasonably practicable in the circumstances.
- the arrangements have not been contrived to circumvent Australian migration requirements.
The Tribunal finds that as she was customarily adopted pursuant to reg.1.04(2) and under 18 when the adoption took place, she thus meets cl.802.212(1)(a).
Findings and reasons regarding cl.802.213(5)
The Tribunal will now consider whether the applicant can meet the crucial requirements found in cl.802.213(1) and whether the applicant does meet cl.802.213(5) subsequently in the present case.
cl.802.213(5)(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.
The Tribunal has had the benefit of copious additional information concerning the case and which was not available to the delegate at time of application. The Tribunal is satisfied that the applicant was ‘customarily adopted’ by her grandmother ([Mrs A]) pursuant to Thai law and reg.1.04(2) of the Australian Migration Regulations. Movement details disclose that [Mrs A] was also an Australian citizen when the adoption took place.
cl.802.213(5)(b)(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.
The Tribunal is satisfied (from Movement Details) that at the time the (customary) adoption formally took place ([March] 2015) the adoptive parent had not been ‘residing overseas for more than 12 months’.
The Tribunal observes that the expression ‘residing’, or ‘residence’, is not defined in the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth). But the concept of ‘residence’ has received considerable attention in common law, usually in the context of taxation or social security legislation. Relevantly, it was considered by the High Court in Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241, where Justice Williams made the following observation regarding residence at [249]:
The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode.
In Hafza v Director General of Social Security (1985) 6 FCR 444, which concerned an AAT decision, Justice Wilcox held that the concept of residence includes two elements:
‘physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever.’
The Tribunal observes that [Mrs A] did return to Thailand, constantly, to check on the applicant. She stayed for up to months at a time off and on. [Mr A] remained in Australia to look after their school age son, [Mr B]. As [Mr A] was not a Thai citizen he was not (pursuant to Thai law) able to be a party to any legal obligations concerning the applicant. Therefore, (the late) [Mrs A] held the official guardianship role of her customarily adopted daughter ([the applicant]) for the purposes of Thai law.
Her visits to Thailand in 2014 and 2015 completed the customary adoption process of the applicant which had begun in 2008 when [Mrs A] took on the parental responsibility of her upbringing from her daughter. She was given an Order [in] March 2015 permanently sundering her granddaughter’s care and control from her biological parents being their ‘parental power’ as it is referred to in Thai Law.
Whilst she was caring for the applicant’s welfare in Thailand and preparing for the applicant’s move to study full time in Australia - she had to also attend to the care of her biological son – [Mr B]. She visited Thailand many times to facilitate the finalisation of the paperwork for the customary adoption of the applicant. This adoption was ongoing since the applicant’s parental abandonment in 2008.
However, despite the representative’s arguments that her various stays were cumulatively ‘more than 12 months’ the Tribunal is not satisfied that she was actually ‘residing overseas for a period of more than 12 months - when the adoption took place’ pursuant to the rubric in Koitaki and Hafza.
Thus, following this above finding, the Tribunal has considered, in the alternative, whether because of any ‘compelling or compassionate circumstances’, subparagraph cl.802.213(5)(b)(i) should be waived by the Tribunal - as allowed by cl.802.213(5)(b)(ii).
The Tribunal is satisfied that the family responsibilities of the customary adoptive parent ([Mrs A]) were ‘compassionate circumstances’ as they involved the immediate welfare of her young son, [Mr B], who was living in Australia.
Furthermore, around 2014, the applicant’s representative informs that [Mrs A] started feeling unwell. She began seeking medical treatment in Australia. Hence, it was not possible for her to stay in Thailand for a prolonged period. Tragically, she was eventually diagnosed with terminal [Disease 2] in May 2015 from which she later demised. Fortuitously for this brave and courageous woman, she lived long enough to formally achieve the finalization of her important quest (her grandaughter’s formal customary adoption under Thai law) which had happened earlier [in] March 2015.
At the same time, the Tribunal is informed, [Mr A] was working full-time in Sydney to support his family - which now included the applicant. His son [Mr B], who was [Age] years old, was also attending school in Sydney. This meant that it was not practicable for the family to ‘reside’ in Thailand.
The Tribunal observes that the [As] did not begin a process of formal Australian adoption of the applicant in Australia until 2017. The applicant was initially brought to Australia in 2014 as a student. Much later a decision to formally adopt her was made necessary by the fatal medical circumstances prevailing with her customarily adoptive parent - [Mrs A]. She was her legal guardian under Thai law and not [Mr A]. [Mrs A]’s earlier demise would (in all probability) have ended her formal Thai guardianship rights over the applicant - with significant consequences. It could, for instance, have further disrupted her Thai legal status – especially as she was still a minor.
The Tribunal finds that such difficult family circumstances faced by the applicant were ‘compassionate’ as they involved ‘sympathy and feelings and concerns for others’. Furthermore, such circumstances are ‘compelling circumstances’ as they are ‘powerful’ (see Paduano) and ‘drive’ the Tribunal to waive the requirement found in cl.802.213(5)(i).
Therefore, the applicant meets cl.802.213(5)(b).
cl.802.213(5)(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.
This Tribunal finds that this requirement is not applicable because the Tribunal has found that the adoptive parent did not reside overseas for over 12 months in Thailand prior to the adoption.
The Tribunal finds no historical evidence of any contrivance by the adoptive parents ‘to circumvent the requirements for entry to Australia of children for adoption’.
cl.802.213(5)(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.
Under Thai law, the guardian has the same rights and duties as a person exercising ‘parental power’ as provided in Section 1564(1) which is to do with maintaining children and to provide proper education for them during their minority and also Section 1567 of the Civil and Commercial Code of Thailand (CCCT).
Section 1567 of the CCCT defines what ‘parental power’ means:
·to determine the child's place of residence;
·to punish the child in a reasonable manner for disciplinary purposes;
·to require the child to do such work as may be reasonable to his ability and condition in life;
·to demand the return of the child from any person who unlawfully detains him.
According to the above clauses, as the Thai Court appointed guardian of the applicant was [Mrs A]. She was authorised (in 2015) to assume and exercise the necessary ‘parental power’ over the applicant. Thus, there was a ‘sundering’ of the parent relationship with her biological parents. The Thai Court Order made the ‘parental power’ of [Mr A] and [Mrs A] full and permanent with no further sharing of ‘parental power’ with the biological parents.
Effectively this Order was a formalisation of a family customary adoption arrangement involving the applicant which was already in place and dated back to 2008. In practice, both her adoptive parents (the [As]) had shared the parental rights over the applicant. They had been making joint decisions in relation to her place of residence, disciplinary measures, welfare and extracurricular activities since she was 1 year old.
The Tribunal finds that, subsequently, the remaining adoptive parent ([Mr A]) has evidenced that he has lawfully acquired full and permanent parental rights over the applicant by adoption. His adoption of he has been approved by the NSW Supreme Court.
Accordingly, because of satisfying the above requirements the Tribunal finds that cl.802.213(5)(d) is also met by the applicant.
Dependency
An applicant for a child visa who is under 18 years is a ‘dependent child’ merely by fact of their age and does not require consideration of whether they are also ‘dependent‘ within the meaning of reg 1.05A. 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.
The Tribunal, therefore, finds that the applicant was the ‘dependent child’ of her sponsor and adoptive parent at time of application and decision.
CONCLUSION
The Tribunal finds that the applicant meets the requirements of cll.802.212, 802.213(1) and cl.802.221.
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(1) of Schedule 2 to the Regulations
·cl.802.221 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 4829

9 AUGUST 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Appeal