2011538 (Migration)

[2024] AATA 907

2011538 (Migration) [2024] AATA 907 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nathan Joo (MARN: 1173091)

CASE NUMBER:  2011538

MEMBER:Justine Clarke

DATE:5 April 2024

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 802.213 of Schedule 2 to the Regulations.

Statement made on 05 April 2024 at 11:43am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – compelling or compassionate circumstances – why the adoptive parents could not reside overseas – ownership of local businesses – close ties to Australia – custody dispute – best interest of the child – lawfully acquired full and permanent parental rights – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 802.212, 802.213, 802.216, 802.226

CASES

Anani v MIMAC [2013] FCCA 1140
Boakye-Danquah v MIMIA (2002) 116 FCR 557
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

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 on 26 June 2020 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 (Cth) (the Act).

2. On 25 April 2019, the applicant, who is a national of the Republic of Korea, applied for the visa. At the time she applied for the visa, the applicant was [age] years of age and at the time of this decision, she is [age] years of age.

3. At the time the applicant applied for the visa, 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).

4. 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, cl 802.226A), the criteria to be met in this case include cl 802.213, which is a time of application criterion. The text of this provision is included as an attachment to these reasons.

5. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate was satisfied that the applicant met cl 802.213(1)(a) stating ‘the applicant was adopted by an Australian citizen[1] and was under the age of 18 at the time of the adoption’. Then the delegate considered whether cl 802.213(1)(b) was met. This is not a case where the adoption was in accordance with the Adoption Convention. The delegate assessed the application pursuant to subclause (5), considering it to be the only subclause relevant to the applicant’s circumstances. The delegate was satisfied that the applicant met paragraph cl 802.213(5)(a) stating, ‘the applicant was adopted overseas and … the adoptive parents were … Australian Permanent Residents at the time of adoption’. However, the delegate was not satisfied that paragraph cl 802.213(5)(b) was met.

   [1] Error in the original. This should be ‘Australian permanent resident’.

6. Paragraph cl 802.213(5)(b) provides:

   (5) The applicant meets the requirements of this subclause if:

   …

   (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[.]

7. The delegate noted that the Adoption Order was made by [Court 1] [in] January 2017 and identifies the sponsor, [Sponsor A], and her spouse, [Husband A], as the adoptive parents. The delegate noted the migration agent’s written submission that:

   As [Sponsor A] and [Husband A] had not been residing overseas for more than 12 months when the adoption was formalised, they do not meet the requirements of cl 802.213(5)(b)(i) therefore in accordance with cl 802.213(5)(b)(ii) they seek to satisfy the Minister that there are compelling or compassionate reasons why cl 802.213(5)(b)(i) should not apply to the Applicant.[2]

   [2] The Tribunal has used the exact text of the then representative’s written submission rather than the extract in the primary decision.

8. In view of this concession, the delegate stated:

   As neither adoptive parent had not [sic] been residing overseas for more than 12 months prior to the adoption, I find that the applicant does not meet subclause (5)(b)(i).

9. The delegate continued:

   These requirements are in place to ensure that Australia meets its obligations under The Hague Adoption Convention, which includes that the best interests of the child are protected. The overall aim of this provision is to cater for adoptions which take place when the Australian adoptive parents are living abroad, long term, for genuine reasons of employment or business but not solely or principally to meet this criterion and avoid the need for approval by Australian welfare authorities. The requirement for one or both of the adoptive parents to be residing overseas for 12 months at the time of the adoption can be waived on compelling or compassionate grounds.

   The 802.213(5)(b)(ii) ‘waiver provision’ (on the grounds of compelling or compassionate circumstances) 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 of visa subclass 102 (the offshore equivalent of a subclass 802 visa lodged in Australia).

   … Only the circumstances relating to why the sponsor or her spouse could not reside overseas for this 12 month period can be considered for the waiver. No other factors surrounding the adoption can be considered.

   …

   Whilst the sponsor and her spouse operate local businesses in Australia and their income is derived from these business interests, local business interests in Australia and financial security is not considered a compelling or compassionate reason why either parent could not reside overseas in the 12 months prior to the adoption taking place.

   Furthermore, the length of Australian residence from both parents is not considered relevant.

   Therefore I do not consider the sponsor has compelling or compassionate reasons why either the sponsor or her spouse could not have resided overseas in the 12 months prior to the adoption taking place. As a result the applicant does not meet sub-clause 802.213(5).

10. On 13 July 2020, the applicant applied to the Tribunal for the review of the delegate’s refusal decision. The applicant was represented in relation to the review.

11. On 25 October 2021, the then representative requested priority processing of the case on behalf of the applicant.

12. On 9 November 2021, the Tribunal wrote to the applicant, by way of the then representative, to inform her that the Tribunal had not granted priority processing to the case.

13. Subsequently, the applicant appointed the current representative as her new representative.

14. On 5 February 2024, the current representative requested priority processing of the case on behalf of the applicant.

15. On 19 February 2024, the Tribunal refused to grant priority to the processing of the review, explaining that since the request had been received, the case had been allocated for consideration by a Tribunal Member. (The Tribunal notes here that the matter was constituted to the presiding Member on 9 February 2024).

16. On 4 March 2024, the Tribunal wrote to the applicant to invite her to a video hearing on 4 April 2024. The Tribunal requested that the matter be heard by video because of the location of the applicant and the sponsor—neither is based in Melbourne.

17. On 11 March 2024, the representative returned the completed response to hearing invitation form and explained that the applicant would not attend the hearing because she is a minor and that the representative and the applicant’s adoptive parents would attend to represent her interests.

18. On 2 and 3 April 2024, the representative submitted written submissions and further evidence on behalf of his clients to the Tribunal.

19. Having reviewed and considered all the material before it, the Tribunal considers that, pursuant to s 360(2)(a) of the Act, a hearing is not required in this review and that the Tribunal should decide the review in the applicant’s favour based on the material before it. Accordingly, on the morning of 4 April 2024, the Tribunal cancelled the video hearing that had been scheduled for later in the day.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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.

22. As has been explained, based on the evidence before the Department, the delegate was satisfied that the applicant met cl 802.213(1)(a) and cl 802.213(5)(a). The Tribunal has no reason to revisit these findings. Based on the evidence before it, the Tribunal is satisfied that these criteria are met.

23. Accordingly, in this review, the issue for determination is whether the applicant meets cl 802.213(5)(b)(ii), (c) and (d). If the applicant meets these criteria, she will meet all the paragraphs in subclause (5) and thus will meet cl 802.213(1)(b), and thus cl 802.213(1) in its entirety.

    Is the Tribunal satisfied that, because of compelling or compassionate circumstances, cl 802.213(5)(b)(i) should not apply to the applicant? (cl 802.213(5)(b)(ii))

24. As noted earlier, in the primary decision the delegate stated that, ‘[o]nly the circumstances relating to why the sponsor or her spouse could not reside overseas for this 12 month period can be considered for the waiver’. However, the Tribunal has not been able to find anything in the law or policy to support this position.

25. With respect to the law, the Tribunal notes that there is nothing in the words of cl 802.213(5)(b)(ii) which supports the delegate’s contention.

26. The Tribunal has also reviewed the Department’s policy. In the section titled ‘exception to the 12-month overseas residence requirement’, it states the following.

    The 802.213(5)(b)(ii) ‘waiver provision’ (on the grounds of compelling or compassionate circumstances) 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 of visa 102.

    Officers may use this waiver without referral to National Office, exercising their own judgment in deciding whether the circumstances of the case are ‘compelling or compassionate’ or not; no further policy guidance is currently considered necessary.

27. Accordingly, the Tribunal finds that there is nothing in the law or the Department’s policy to support the validity of the delegate’s statement that ‘[o]nly the circumstances relating to why the sponsor or her spouse could not reside overseas for this 12 month period can be considered for the waiver’. Given these findings, the Tribunal considers that ‘compelling or compassionate circumstances’ are not to be limited in the way the delegate contended.

28. Whether a circumstance is compelling or compassionate is a question of fact and degree for the Tribunal and one which requires a subjective assessment which considers all the circumstances.[3] The expression ‘compelling or compassionate circumstances’ is not defined in the legislation or regulations. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

    [3] Anani v MIMAC [2013] FCCA 1140 at [34].

29. In Waensila v MIBP[4] the Full Court of the Federal Court held that the Tribunal erred in failing to take into account events or circumstances that emerged after the date of the visa application in considering whether there were compelling reasons for not applying Schedule 3 criteria. The Court observed that the purpose of the provision is to provide greater flexibility to respond to compelling circumstances[5] and the text of the relevant provisions in cl 820.211(2)(d)(ii) do not contain any clear words that have the effect of confining that consideration to events which only existed at the time of the visa application.[6]

    [4] Waensila v MIBP [2016] FCAFC 32 per Robertson J at [22] and Griffiths J at [59], overruling the Federal Court decision in Boakye-Danquah v MIMIA (2002) 116 FCR 557 which held that ‘compelling reasons’ was limited to those arising out of the circumstances as at the time of visa application.

    [5] Waensila v MIBP [2016] FCAFC 32 at [2], [18], [56].

    [6] Waensila v MIBP [2016] FCAFC 32 at [2], [16], [58].

30. The Tribunal can see no reason why the principle in Waensila could not extend to the relevant provisions in cl 802.213(5)(b)(ii)—a time of application criterion where, arguably, the purpose of the provision is to provide greater flexibility to respond to compelling or compassionate circumstances. For this reason, the Tribunal has also considered compelling or compassionate circumstances that exist at the time of this decision.

31. The former representative made written submissions about compelling or compassionate circumstances in the written submissions of 15 April 2019, which are on the Department’s file. It was submitted:

    The compelling or compassionate reasons include the following:

    -    [Sponsor A] and [Husband A] both own and operate their own local business. [Sponsor A] operates [name and Australian Business Number omitted in these reasons] and [Husband A] operates [name and Australian Business Number omitted in these reasons].

    -    [Sponsor A’s] business employs up to 3 Australian citizens or permanent residents and [Husband A’s] business employs up to 70 Australian citizens or permanent residents.

    -    [Sponsor A], [Husband A] and their two children ([the applicant] and [Child A]) rely on the income derived from the businesses for their livelihood.

    -    Given the couple’s business interests in Australia, living overseas for a lengthy period of time is not a viable option as it may lead to closure of their businesses.

    -    As at the date of this letter, [Sponsor A] and [Husband A] have resided in Australia for 12 years.

    -    [Child A] has resided in Australia since birth and [the applicant] has resided in Australia since January 2014.

    -    Given their lengthy residence in Australia, the family have formed close ties to Australia and for all intended purposes consider Australia as their Home.

    -    If [the applicant's] visa application is refused, the family will be forced to relocate to an overseas country and such a move will adversely affect their business interests in Australia and consequently the income they derive to sustain their livelihood.

    -    Relocation overseas will have an adverse psychological impact on the family as a whole and in particular the children who have only known Australia as their home.

    -    A refusal of the visa application is akin to punishing [the applicant] for the fact that her adoption process occurred outside the legislative framework. 

32. As has been explained, the delegate did not find the circumstances to be compelling or compassionate circumstances.

33. In this review, the representative made written submissions about compelling or compassionate circumstances in the written submissions dated 28 March 2023 which were received by the Tribunal on 2 April 2024. These written submissions encompassed: legal and emotional challenges as well as the applicant’s best interests. These submissions were as follows.

    Legal and Emotional Challenges:

    The adoption of [the applicant] introduced [Husband A] and [Sponsor A] to a range of legal and emotional challenges, exacerbated by the biological parents’ inconsistent consent and attempts at extortion amidst South Korea’s evolving legal system. Opting to remain in Australia and to shield [the applicant] from the instability brought about by her biological parents, the [sponsors] also sought to protect both [the applicant] and their biological son, [Child A], who was born in Australia, from the complexities surrounding [the applicant’s] adoption. This period, laden with psychological stress for the adoptive parents due to a prolonged legal process, necessitated the sale of their Seoul property, underscoring the lengths they went to for [the applicant’s] security. The ensuing custody battle, unprecedented in the Seoul court, highlighted the biological parents’ lack of capacity to provide for [the applicant], leading to a favourable decision for the [sponsor] family after exhaustive reconciliation efforts, including group counselling and mediation. Raised in the supportive and stable environment of Australia and attending [name of private school omitted in these reasons], [the applicant’s] experience is markedly different from the potential upheaval of her early life, a testament to [the sponsors’] dedication to ensuring a nurturing upbringing for her, all the while keeping [Child A] uniformed of [the applicant’s] adoption to preserve familial harmony.

    Best interests of [the applicant]

    In considering the final submission, the overarching principle guiding this case is the best interest of the child, as stipulated by the Convention on the Rights of the Child Article 9 and 10. This principle mandates that all actions concerning children should prioritise their well-being and development. The devastating circumstances faced by the [sponsor] family, necessitating a protective stance to ensure [the applicant] and [Child A’s] safety and stability, reflect a dire situation where maintaining their residency in Australia emerges as the only viable option to safeguard their interests. The enduring ties to Korea, mirrored through consistent financial support and cultural engagement, alongside the demonstrated commitment to Australia, underscore a life of bilateral residency driven by necessity rather than choice. The prospect of uprooting [the applicant] from her established life in Australia, where she is deeply embedded within her school community and extracurricular activities, poses a significant threat to her identity and well-being. Such a move would disrupt the stable and nurturing environment meticulously cultivated by [Sponsor A] and [Husband A], contradicting the best principle by imposing undue hardship on a child who views Australia as her home. Thus, it is imperative to view the [sponsor] family’s situation in its entirety, recognising the profound impact that residency decisions will have on [the applicant’s] life and well-being, in accordance with the child’s best interest and the guiding principles of child convention law.       

34. The submissions concluded by stating that the family’s ‘situation, marked by a dedicated pursuit of [the applicant’s] best interests and her successful integration into Australian society, signifies compelling and compassionate circumstances that merit consideration for a residency requirement waiver’.

35. A number of documents were submitted in support of these submissions, including: statutory declaration made by [Husband A] on 30 March 2024; statutory declaration made by [Sponsor A] on 1 April 2024; various financial documents (explained on page 3 of the submissions); a translated copy of the statement made by the self-described ‘litigation attorney’ in Korea who, in 2015, was in charge of the case in respect of [Sponsor A] and [Husband A] and the applicant (5 pages); copies of English translations of various Court orders from Korea concerning [Sponsor A], [Husband A] and the applicant; copies of text messages received on 7 October 2023 purportedly by the biological mother of the applicant and the text messages between a member of the [sponsor] family and ‘[a named lawyer]’ in response to the text messages; Certificates of Enrolment for the enrolment of the applicant in a named private school in Australia; statutory declaration made by [Friend A] (close friend of the couple) made on 17 July 2023; signed letter from [Friend B] ([Husband A’s] work colleague of over 13 years) dated 19 July 2023; signed letter from [Friend C] ([Sponsor A’s] friend of 15 years) dated 7 August 2023; copy of confidential psychological assessment of the applicant made by a named Consultant Counselling Psychologist of [Health Service 1] on 30 March 2024 and a copy of the Convention on the Rights of the Child with text in Article 9 highlighted.  

1. The Tribunal is aware that, at the time of this decision, the applicant is offshore in [Country 1] as she has not been granted an Electronic Travel Authority (ETA) as the family had expected. In her statutory declaration, [Sponsor A] declared that the applicant has now applied four times for an ETA, but all have been refused. The movement records on the Tribunal’s file also evidence that, as at 4 April 2024, the applicant, [Sponsor A] and [Husband A] were all offshore.

2. From all the evidence before the Tribunal it is clear that the applicant has been in the care of her adoptive parents since she was a baby (with [Sponsor A] claiming to have been present for the applicant’s birth and that the applicant began living with the family seven days afterwards); is unaware that she is adopted and has lived in Australia for most of her life (first entering Australia at one month of age and departing Australia once in 2015 and twice in 2016 for short periods until she departed [in] December 2023 and has not been able to re-enter). The evidence is that she has enjoyed a happy life in Australia with her adoptive parents and older brother. In AAT case reference 2305171, the presiding Member found that, in that case, similar circumstances constituted both compelling and compassionate circumstances. The Tribunal takes a similar view of the facts in the present case. The Tribunal finds that the circumstances outlined in this paragraph are both compelling and compassionate circumstances why the requirement in cl 802.213(5)(b)(i) should not apply to the applicant.

3. Further, for the avoidance of doubt, the Tribunal confirms that it accepts the submissions, as supported by the evidence, that, at the time of application for the visa, the legal and emotional challenges faced by the family—in the words of [Friend A], [Sponsor A’s] and [Husband A’s] ‘love for [the applicant] transcends borders and legal constraints’—as well as the applicant’s best interests (outlined in the paragraph above) constitute compelling and compassionate circumstances why the requirement in cl 802.213(5)(b)(i) should not apply to the applicant.

4. In addition, the Tribunal considers that, at the time of this decision, there are additional compelling and compassionate circumstances why the requirement in cl 802.213(5)(b)(i) should not apply to the applicant.

5. There is strong evidence before the Tribunal that, at the time of this decision, the applicant is distressed. The psychologist assessed her to demonstrate ‘signs of distress and uncertainty regarding her current situation and future prospects’. The psychologist continued:

   The emotional distress she is experiencing, including feelings of homesickness, frustration, sadness, and confusion, underscores the profound impact that the visa refusal has caused on her mental health. As a psychologist, I believe that her strong attachment to Australia, where she grew up, established friendships, and built her life, is crucial for her overall well-being and stability.

6. In her statutory declaration, [Sponsor A] declared that ‘[the applicant] is deeply sad’ and ‘sincerely ask[ed]’ the Tribunal Member to decide with ‘kindness and compassion’.

7. In his statutory declaration, [Husband A] ‘implore[d]’ the presiding Member to ‘consider the depth of our commitment to our children’s well-being and our unyielding connection to Australia, as we seek a resolution that brings our family back together’. He declared that ‘[e]very week, [Child A] and I undertake the journey to [Country 1] to be with [the applicant] and [Sponsor A],’ where the adoptive mother and daughter are living. [Husband A’s] movement records evidence frequent and short departures from Australia in 2024.

8. To conclude, having reflected upon all the evidence before the Tribunal, the Tribunal feels forced or driven irresistibly (to use the words of Plaintiff M64/2015 v MIBP [2015] HCA 50) to decide in the applicant’s favour and has ‘feelings of sympathy, sorrow, pity or concern for others’ (to use the language of the dictionary meaning of ‘compassionate’). The Tribunal finds that this is the ‘rare case’ (to use the language of the Department’s policy) where, because of compelling or compassionate circumstances, the requirement in cl 802.213(5)(b)(i) should not apply to the applicant. Accordingly, the Tribunal finds that cl 802.213(5)(b)(ii) is established.

   Is the Tribunal satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption? (cl 802.213(5)(c))

9. As the Tribunal is satisfied that, because of compelling or compassionate circumstances, cl 802.213(5)(b)(i) should not apply to the applicant, the requirement in cl 802.213(5)(c) appears to be redundant. Certainly, the former representative made this submission in their written submissions of 15 April 2019 which were before the delegate.

10. In this review, it was submitted that ‘[t]he evidence presented, detailing the challenges of the adoption process and the family’s proactive measures for [the applicant’s] welfare, clearly illustrates that their time abroad was not an endeavour to bypass the requirements for Australian adoption procedures’. Based on all the evidence before the Tribunal, the Tribunal accepts these submissions.

11. To the extent that cl 802.213(5)(c) needs to be met in a case, such as the present one, where cl 802.213(5)(b)(ii) has been found to be established, the Tribunal is satisfied that cl 802.213(5)(c) is met.

    At the time of application for the visa on 25 April 2019, had the adoptive parent, or the adoptive parent and the adoptive parent’s spouse or de facto partner, lawfully acquired full and permanent parental rights by the adoption? (cl 802.213(5)(d))

12. Throughout the application for the current visa, it has been claimed that cl 802.213(5)(d) is met. See for example the former representative’s written submissions of 15 April 2019 which are on the Department’s file.

13. In this review, the representative submitted the following:

    ·     a translated copy of the judgement of [Court 1] [in] January 2017 that [Sponsor A] and [Husband A] were ‘allowed to adopt the [applicant]’; and

    ·     a translated copy of the judgement of [Court 1] [in] March 2018 confirming the existence of a parent-child relationship between [Sponsor A] and [Husband A] (each a parent) and the applicant (the child). As the Order explained, ‘the benefit of the confirmation is also recognised in order to correct the family relationship registration’ (earlier, the adoptive parents had completed the birth registration for the applicant in Korea on the basis that they were her biological parents).

14. It appears to the Tribunal that, if required, the Court Orders could be enforced against the biological parents. In view of all the evidence before the Tribunal, the Tribunal finds that [Sponsor A] and [Husband A] (the adoptive parents) lawfully acquired full and permanent parental rights by the adoption in Korea.

15. The Tribunal is satisfied that cl 802.213(5)(d) is met.

    CONCLUSION

16. Given the findings above, all the limbs of cl 802.213(5) are met and so it follows that cl 802.213(1) is met in its entirety. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

17. After an officer of the Tribunal had contacted the representative to inform that a favourable decision could be made on the papers and that a hearing was not needed, the representative queried whether the Tribunal could make a determination regarding the applicant returning onshore with a visa. The officer explained that this was outside the Tribunal’s jurisdiction.[7]

    [7] To this, the Tribunal adds here that the Direction of the President of the Tribunal titled Conducting Migration and Refugee Reviews states that, ‘[a]s a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters’.

18. The Tribunal is mindful of the gravity of the situation that the family find themselves in. The Tribunal trusts that they will pursue all avenues available to them to bring the circumstances of this case to person/s with the authority to make a favourable decision in respect of a visa being granted to the applicant so that she can return onshore. As noted, the Tribunal does not have the power to do so.

19. Given that there is a distressed child at the centre of this case, any efforts the Department of Home Affairs may make in expediting this case would be appreciated.

    DECISION

20. 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 802.213 of Schedule 2 to the Regulations.

    Justine Clarke
    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.