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

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).
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.
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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2011538 (Migration)

Details

AGLC: 2011538 (Migration) [2024] AATA 907
Case: [2024] AATA 907
Decision Date: 5 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant was the subject of an overseas adoption by an Australian citizen. The core dispute revolved around whether the applicant met certain criteria under clause 802.213 of the Migration Regulations 1994, specifically concerning the adoptive parent's residence overseas and the existence of compelling or compassionate circumstances that might waive this requirement.

The Tribunal was required to determine whether the applicant met the requirements of clauses 802.213(5)(b)(ii), (c), and (d). Clause 802.213(5)(b)(ii) relates to whether compelling or compassionate circumstances exist such that the usual requirement for the adoptive parent to have resided overseas for more than 12 months should not apply. The Tribunal also had to consider whether the adoptive parent's overseas residence was contrived to circumvent Australian entry requirements for adopted children, and whether lawful and permanent parental rights had been acquired.

The Tribunal found that the delegate's interpretation of clause 802.213(5)(b)(ii) was too narrow, limiting the scope of "compelling or compassionate circumstances" solely to the reasons why the sponsor or their spouse could not reside overseas for the specified 12-month period. The Tribunal reviewed both the law and departmental policy, concluding that there was no basis for such a restrictive interpretation. The policy indicated that officers could exercise their own judgment in assessing "compelling or compassionate" circumstances, with no further specific guidance provided. Consequently, the Tribunal determined that the delegate's restrictive approach was not supported.

Given these findings, the Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration. The reconsideration was to proceed with the direction that the applicant met the criteria under clause 802.213 of Schedule 2 to the Regulations. The Tribunal noted the distressed child at the centre of the case and expressed appreciation for any efforts by the Department of Home Affairs to expedite the matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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)) 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. 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. 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. 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.

Decision

Reasons for decision

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 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 ClarkeMemberATTACHMENT – RELEVANT LAWMigration Regulations 1994Schedule 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.

Ratio Decidendi

Legal Principle Established

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