1932045 (Migration) - [2022] AATA 2230

1932045 (Migration) [2022] AATA 2230 (10 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932045
MEMBER:Justine Clarke
DATE:10 June 2022
PLACE OF DECISION: Melbourne
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; and
·cl 802.221(1) of Schedule 2 to the Regulations.

Statement made on 10 June 2022 at 12:44pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – adoption in accordance with usual practice in culture – relative adoption – applicant nephew of sponsor’s wife – applicant part of intact biological family – formal adoption available and practicable – provisions for Hindu adoptions – court order – in-country and inter-country adoption – decision under review remitted
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 18A
Migration Act 1958 (Cth), ss 5CA(1)(b), (2), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04(1)(b), 1.14A(2), Schedule 2, cls 802.212(1)(a), 802.221(1)
CASE
Liang v MIAC [2007] FMCA 1288
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 on 30 October 2019 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (the Act).
On 20 July 2018, the applicant applied for the visa. He is a national of India. The evidence before the Tribunal is sufficient to satisfy the Tribunal that, at the time of application, the applicant was [Age 1] years of age and that, at the time of this decision, he is [Age 2] years of age.
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, cl 802.226A), the criteria to be met in this case include cl 802.212.
Clause 802.212(1) provides:
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 applicant provided the Tribunal with a copy of the delegate’s refusal decision. The delegate refused to grant the visa on the basis that cl 802.212(1)(a) was not met.
The delegate had cause to consider the adoption criteria because the expression ‘dependent child’—as found in cl 802.212(1)(a)—is defined in reg 1.03 and the ‘chapeau’ or opening part of that provision relevantly provides that a ‘dependent child’ of a person means the child of the person. (The full text of the definition of ‘dependent child’ in reg 1.03 is included in the attachment to these reasons).
The expression ‘child of a person’ is defined in s 5CA of the Act.
Subsection (1) of that provision relevantly provides:
Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
…
(b) someone who is an adopted child of the person within the meaning of this Act.
However, subsections (2) and (3) of that provision provide:
(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3)Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
The Executive Government has made regulations in this respect.
Sub-regulation 1.14A(2) of the Regulations relevantly provides:
For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):
(a) the child is taken to be the child of the adoptive parent or parents; …
Regulation 1.03 provides that the term ‘adoption’ has the meaning set out in reg 1.04 of the Regulations and includes a note stating that ‘adopt and adopted have corresponding meanings: see Acts Interpretation Act 1901 (Cth), section 18A’.
Regulation 1.04 provides:
(1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
(a)formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
(b)formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or
(c)other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.
(2) For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:
(a)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
(b)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
(c)the Minister is satisfied that:
(i) formal adoption of the kind referred to in paragraph (1)(b):
(A)was not available under the law of the place where the arrangements were made; or
(B)was not reasonably practicable in the circumstances; and
(ii) the arrangements have not been contrived to circumvent Australian migration requirements.
The delegate noted and listed the extensive information and submissions that were before her.
When considering reg 1.04(1)(a), the delegate noted that the applicant had advised that he was not adopted with the involvement of the Australian authorities. Accordingly, the delegate found that this requirement was not met because, before the adoption took place, the applicant’s adoption was not approved by an Australian State/Territory central authority.
When considering reg 1.04(1)(b), the delegate stated that the applicant had not provided evidence that a ‘No Objection Certificate’ had been issued by the Central Adoption Resources Agency (CARA) in India.[1] Rather, the Court Order that had been submitted stated that CARA had refused to issue a ‘No Objection Certificate’[2] and accordingly, there was no evidence that the adoption met the provisions of the Indian Juvenile Justice (Care and Protection of Children) Act 2015.
[1] The delegate’s decision explained that, in India, CARA is ‘the statutory body of the Ministry of Women & Child Development, Government of India, and is responsible for monitoring and regulating in-country and inter-country adoptions in India’.
[2] The Indian Court Order of [March] 2017 stated that this was because CARA only had the Adoption Deed before it and the parties were advised ‘the certificate can only be issued after obtaining the Court Decree for the competent court to the effect the sponsor and his wife are the legal guardian of the applicant’.
Having found that reg 1.04(1)(a) and (b) were not met, the delegate assessed the applicant pursuant to reg 1.04(1)(c). It will be recalled that this provision concerns customary adoption.
The delegate found that reg 1.04(2)(a) was met because the Adoption Deed, executed [in] July 2016 in Ludhiana, was made under the Indian Hindu Adoptions and Maintenance Act 1956. Accordingly, the delegate was satisfied that this is the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter in India.
The delegate also found that reg 1.04(2)(b) was met because the information submitted was that, from the time of his birth,[3] the applicant has been residing with the sponsor’s family. Accordingly, the delegate was satisfied that the child-parent relationship between the applicant and the sponsor is exclusive and significantly closer than any such relationship between the applicant and any other person/s.
[3] This appears to be an error. The information and evidence before the Tribunal is that [Mrs A] (the sponsor’s wife) returned to India from June 2016 to October 2017 to care for the applicant in her country of origin.
However, the delegate refused to grant the visa because she found that reg 1.04(2)(c) was not met. It will be recalled that this provision has two requirements. First, it requires that the Minister is satisfied that formal adoption of the kind referred to in reg 1.04(1)(b)—that is, formal adoption arrangements made in accordance with the law of another country—either was not available under the law of the place where the arrangements were made or was not reasonably practicable in the circumstances. The second requirement is that the Minister must be satisfied that the arrangements have not been contrived to circumvent Australian migration requirements.
The delegate found that, in India, formal adoption is both available and practicable. Accordingly, the delegate found that the applicant did not meet the first requirement—reg 1.04(2)(c)(i). In view of this finding, the delegate did not need to consider the second requirement—reg 1.04(2)(c)(ii).
In the circumstances, the delegate found that, at the time of application, the applicant did not meet cl 802.212(1).
The delegate also considered whether the applicant met cl 802.212(1A) but noted that there was no information to suggest that the applicant is the ‘step-child’, so found that this provision was not met.
The delegate found that cl 802.212(2) did not apply because the applicant is under 25 years of age.
On 11 November 2019, the applicant applied to the Tribunal for review of the refusal decision. The applicant was represented in relation to the review by his registered migration agent.
Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 24 February 2022, the applicant, together with his guardians [Mr B] (the sponsor) and [Mrs A] (the sponsor’s wife), appeared by video before the Tribunal to give evidence and present arguments. The Tribunal did not take oral evidence from the applicant. The representative also attended the hearing. All these persons were together, observable by the camera, in the one room for the entirety of the video hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, at the time the application for the visa was made on 20 July 2018, the applicant met cl 802.212(1).
In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 802.221 (a time of decision criterion) as well.
In assessing this issue, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as the oral evidence given at the hearing. The Tribunal acknowledges that it has more evidence before it than had been before the delegate.
Dependent child criteria
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).
Dependent child?
At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(1)(a).
At the time of application on 20 July 2018, it was claimed that the sponsor was an Australian citizen. The Tribunal notes that the delegate’s refusal decision states that both a copy of the sponsor’s Australian passport and his Certificate of Australia Citizenship, dated [September] 2014, were submitted with the application for the visa. Neither of these documents are on the copy of the Department’s file that was provided to the Tribunal. Notwithstanding, the Tribunal accepts that such evidence was submitted to the Department in support of this claim.
The Tribunal is satisfied that, at the time of application, the sponsor was an Australian citizen and that, at the time of this decision, he remains an Australian citizen. (The Tribunal notes that the sponsor’s movement records, a copy of which is on the Tribunal’s file, states that he is an Australian citizen).
Adopted child?
On a date in the second quarter of 2016, the applicant was born in India to biological parents who had children already. Details of the applicant’s biological parents can be found in both the Department’s file and the Tribunal’s file. The applicant’s biological parents are related to [Mrs A] (the sponsor’s wife) in that they are her brother and sister-in-law respectively. Such an adoption is referred to as a ‘relative adoption’.[4]
[4] ‘Relative adoption refers to the adoption of a child by their biological relatives’: Australian Government Attorney-General’s Department, Intercountry relative child adoptions, May 2015, 1.
It was submitted that, both before and after the applicant’s birth, both the sponsor and his wife had taken several steps to facilitate the adoption. The sponsor’s signed statement of 10 February 2022 and his wife’s signed statement of 31 August 2020 detail these steps. The statements are in largely similar terms.
It was submitted, in the written submissions of 31 August 2020, that the applicant is an adopted child based on customary adoption (reg 1.04(1)(c)) and that all the requirements in reg 1.04(2) are met. It was acknowledged that formal adoption procedure is available in India. However, the claim was made that formal adoption of the applicant by the sponsor and his wife was not possible under Australian or Indian law.
In this review, the Tribunal has found it helpful to distinguish between adoption per se and intercountry adoption. Although not articulated as such, the Tribunal understands the claim to be that it has not been possible for the sponsor and his wife to formally adopt the applicant from India to Australia—an intercountry adoption—under Australian or Indian law.
With respect to the claim that it was not possible and therefore ‘not reasonably practicable’ for the sponsor and his wife, as residents of Victoria, to formally adopt the applicant from India to Australia (an intercountry adoption) pursuant to Australian law, evidence was submitted from Intercountry Adoption Australia. One of the emails, dated 13 August 2020, stated specifically that ‘residents of Victoria are not able to apply to adopt from India at this time’. Another email, dated 18 August 2020, explained that Queensland and the Northern Territory were the only Australian jurisdictions participating in the reactivation of the India-Australia adoption program.
With respect to the claim that it was not possible for the sponsor and his wife to formally adopt the applicant from India to Australia (an intercountry adoption) pursuant to Indian law, this was said to be because ‘the adoption procedure will only be completed when relevant agencies in Australia provide the necessary reports’.
The applicant provided an email from a named officer of Intercountry Adoption Victoria within the Victorian Department of Health & Human Services to the sponsor, dated 26 July 2017, where that officer explained that, with respect to intercountry adoption of a relative child:
In general terms, the request needs to be generated by the country of origin for the child, where the child is in need of care and protection and all local/in-country options have been exhausted.
It was submitted that because the sponsor and his wife are non-residents of India and/or citizens of a country other than India, they had to apply to CARA to finalise the intercountry adoption process. It was submitted that:
·they had applied to CARA;
·CARA requires a Home Study Report to be prepared;
·CARA has written to the relevant Australian authority, ‘Adoption Victoria’, about this report and also requesting approval of the adoption;
·Adoption Victoria does not agree to facilitate the adoption in this case including because ‘[t]here is no clear assessment indicating that the subject child requires adoption’, ‘[t]he subject child is part of an intact biological family including two full siblings’ and ‘[t]he report gives no information about why adoption is in child’s best interest or how the child’s biological parents came to the decision to give their consent’; and
·in the circumstances, the sponsor and his wife cannot obtain a ‘No Objection Certificate’ from CARA and therefore are unable to complete the formal adoption process.
The applicant submitted corroborating documents including:
·extracts from CARA’s procedure titled ‘Registration and Home Study Report for prospective parents for inter-country adoption’ and ‘No Objection Certificate of Authority and pre-adoption foster care’ (available at and
·an email from a named officer at CARA to the sponsor’s wife, dated 31 January 2020, stating that Adoption Victoria does not agree to facilitate the adoption and giving reasons (outlined above).
Regulation 1.04(1)(a)
Formal adoption arrangements under the laws of Australia require consideration of the laws of the State/Territory where the adoptive parent resides. Each State/Territory has responsibility for processing individual adoption applications and assessing prospective adoptive parents to determine their suitability to adopt.
Under Australia’s intercountry adoption process, prospective adoptive parents are required to apply to the relevant State/Territory authority and be assessed prior to their file being sent to an overseas authority for matching with a suitable child.
There is no evidence before the Tribunal that, in this case, formal adoption arrangements were made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children.
Indeed, the evidence is that the sponsor and his wife, as residents of Victoria, are prevented from adopting from India.
In the circumstances, the Tribunal finds that reg 1.04(1)(a) is not met.
Regulation 1.04(1)(b)
As was outlined earlier, this provision provides that a person (the adoptee) is taken to have been adopted by a person (the adopter) if ‘formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised’.
Both the delegate and the representative in this review considered that this provision was not met.

The delegate explained that on 15 January 2016, the Indian Juvenile Justice (Care and Protection of Children) Act 2015 came into effect. The delegate stated that, from this date, all adoptions executed in India are to comply with the Act and be approved by CARA. The delegate found that because the parties had not obtained a ‘No Objection Certificate’ from CARA, ‘the applicant’s adoption has not complied with the Juvenile Justice (Care and Protection of Children) Act 2015’ and accordingly, ‘the adoption process has not been completed within the law of India’.
However, the Tribunal is mindful of the detailed letter of advice from [an Indian law firm] to the parties’ previous representative, dated July 2019. This letter is on the Department’s file. The letter referred to s 56(3) of the Juvenile Justice (Care and Protection of Children) Act 2015 which relevantly provides that ‘[n]othing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act 1956’. The letter explained that:
Adoptions under HAMA [that is, the Hindu Adoptions and Maintenance Act 1956] are valid and lawful under Indian law as it is protected under the religious freedom guaranteed under the Constitution of India.
The letter makes other legal arguments which need not be detailed here.
The Tribunal is mindful that it is required to carefully consider all the evidence before it and make findings of fact as to whether formal adoption arrangements have been made in accordance with the law of another country, rather than requiring it to decide questions of foreign law.
In Liang v MIAC [2007] FMCA 1288, the Court held that the Tribunal had erred in its factual conclusion that the adoption was a ‘formal’ adoption within the meaning of reg 1.04(1)(b). It explained:
On the material before the Tribunal there appears to have been nothing to indicate that the adoption was formalised. There is no notification at a registry office, religious record keeper or notary at or about the time. There are no birth certificates issued at the time. There were no Court orders or permissions obtained from officials or government bodies.
In this situation it is difficult to see how the adoption could be categorised as a ‘formal adoption arrangement’ as referred to in r.1.04(1)(b). As there is no evidence of any formalities being fulfilled the tribunal has erred in concluding that the adoption was a ‘formal’ adoption within the meaning of the regulation (at para [41]). [Emphasis added]
In the present case, there is evidence of a Court Order having been made [in] March 2017. The Order was made in the Court of [Mr C], Additional Civil Judge (Senior Division), Batala. The Court decreed that the sponsor and his wife
are legal Adoptive parents of minor [the applicant] as per the Adoption deed dated [07].2016, which is legal, valid and genuine document having been registered in the Office of Sub Registrar, Batala bearing Vasika No [Number] dated [07].2016 and the minor [the applicant] is the legally adopted son of the plaintiffs by virtue of the above said adoption deed.
It appears to the Tribunal that, if required, the Court Order could be enforced against the biological parents.
Having reviewed and considered all the information before it, including the lengthy Court document, the Tribunal is satisfied that, in this case, formal arrangements for adoption per se were made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopters became so recognised.
It is unnecessary for the Tribunal in this case to consider whether formal arrangements for intercountry adoption were made in accordance with Indian law because the Tribunal is satisfied that the applicant was adopted by the sponsor and his wife in India and that, both at the time of application on 20 July 2018 and at the time of this decision, the applicant was onshore in Australia.
The Tribunal is satisfied that reg 1.04(1)(b) is met.
Accordingly, at the time of application, cl 802.212(1)(a) was met and, at the time of this decision, it continues to be met.
Applicant under 25 or incapacitated for work?
At the time of application, the applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl 802.212(1)(b), (2).
As noted earlier, the Tribunal is satisfied that, at the time of application, the applicant was [Age 1] years of age and that, at the time of this decision, he is [Age 2] years of age.
Accordingly, at the time of application, cl 802.212(1)(b) was met and, at the time of this decision, it continues to be met.
For the reasons above, the criteria in cl 802.212(1) and cl 802.221(1) are met.
CONCLUSION
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; and
·cl.802.221(1) of Schedule 2 to the Regulations.
Justine Clarke
Member

ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.03     Definitions
…
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)       is dependent on that person; or
(ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
…