2016060 (Migration)

[2024] AATA 2639

2016060 (Migration) [2024] AATA 2639 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Konfir Kabo (MARN: 0209289)

CASE NUMBER:  2016060

MEMBER:Justine Clarke

DATE:10 July 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(1) of Schedule 2 to the Regulations.

Statement made on 10 July 2024 at 3:30pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) - adopted by an Australian citizen – adoptive parents residing overseas for 12 months – compelling or compassionate circumstances – medical evidence – health issues of the sponsors – employment ties to Australia – 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, 802.223, 802.226

CASES

Anani v MIMAC [2013] FCCA 1140
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 14 October 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 1 October 2019, the applicant (‘[name]’), who is a national of Indonesia, applied for the visa. At the time she applied for the visa, the applicant was 16 years of age and at the time of this decision, she is 21 years of age.

3. 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) visa.

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, 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 noted that the Adoption Order was made by [Court 1], Indonesia [in] November 2018. It identifies the sponsor, [Sponsor A], and his spouse, [Sponsor B variant], as the adoptive parents. The delegate appeared to be satisfied that the applicant met cl 802.213(1)(a) stating that, at the time of application for the visa, ‘the applicant was adopted by an Australian citizen and was under the age of 18’. Next, 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 an Australian permanent resident and an Australian citizen at the time of adoption’. However, the delegate was not satisfied that cl 802.213(5)(b) was met.

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 found that subclause (5)(b)(i) was not met because neither adoptive parent had been residing overseas for more than 12 months prior to the adoption [in] November 2018. The delegate noted that, in the 12 months prior to the adoption, each parent had spent 35 days outside Australia.

8. 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 his wife could not reside overseas for this 12 month period can be considered for the waiver. No other factors surrounding the adoption can be considered.

   The only information presented in his letter pertaining to why the sponsor and his wife could not or did not reside overseas for the 12 month period is in regards to their employment and because the Indonesian authorities did not require it of them. Employment in Australia is not considered to be compelling or compassionate circumstance. Whilst the Indonesian authorities did not require the prospective adoptive parents to reside in Indonesia for the 12 months prior to the adoption, it is a requirement under Australia’s immigration law.

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

9. On 30 October 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.

10. On 3 and 9 July 2024, the representative submitted further evidence on behalf of his clients to the Tribunal.

11. 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, in the afternoon of 9 July 2024, the Tribunal cancelled the in-person hearing that had been scheduled for the next morning.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. 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.

15. 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))

16. As noted earlier, in the primary decision the delegate stated that, ‘[o]nly the circumstances relating to why the sponsor or his wife 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.

17. 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.

18. 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.

19. 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 his wife 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.

20. 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.[1] 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.

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

21. In Waensila v MIBP[2] 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[3] 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.[4]

    [2] 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.

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

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

22. 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.

23. In this review, the representative submitted the following evidence:

    ·     Twenty-one pages of medical evidence pertaining to [Sponsor A], including a signed and stamped ‘to whom it may concern’ letter, dated 8 July 2024, from [Sponsor A’s] regular GP for the past 12 years.

    ·     A signed letter of support, undated, from [Person A], director of [Business 1], the company which operates [a project] where, since January 2012, [Sponsor A] has been employed as the [occupation 1].

    ·     A signed letter of support, undated, from [a named] consultant at [Business 2] who has worked with [Sponsor A] for ‘the past 12 years’.

    ·     A signed letter of support, undated, from [Pastor A] of [Church 1] where, since 2018, the family have been parishioners. Amongst other things, she stated, ‘[d]uring 2020, I was able to pastorally support [Sponsor B] during her cancer diagnosis and treatment. As well as offer support to the family upon [Sponsor A’s] diagnosis of [a medical condition]’.

    ·     A signed letter of support, dated 29 June 2024, from [Friend A], friend and fellow parishioner of the family who has known the family since February 2023. [Friend A] also noted that she and her husband manage a [similar business] close to where [Sponsor A] is employed as [an occupation 1]. Amongst other things, she stated, ‘[a] previous employee of ours had requested multiple stays overseas for extended periods of time. Unfortunately, in our [business] situation, we were not able to accommodate his requests for extended leave due to the nature of his position as manager and the daily requirements of the [business]. We eventually had to cease his employment as the [occupation 1]’.

    ·     A signed letter of support, dated 4 July 2024, from ]a named manager] at [Employer 1] where, since 12 February 2018, [Sponsor B] has worked as [an occupation 2].

24. The Tribunal accepts and gives great weight to the medical evidence and the letters of support that were submitted in this review.

25. The representative also submitted a list of persons who would be attending the hearing and an outline of the evidence to be given by the various witnesses. It was proposed that the applicant, [Sponsor A], [Sponsor B], [Pastor A] and [Friend A] would give evidence. As the applicant’s brother is a minor, it was not proposed that he give oral evidence unless required by the presiding Member.

26. The representative submitted that, at the hearing:

    ·[Pastor A] would be able to give oral evidence as to the family’s personal circumstances, including both [Sponsor A’s] and [Sponsor B’s] health issues; and

    ·[Friend A] would be able to give oral evidence as to [Sponsor A’s] employment and the importance of his continuous presence at the [business].

27. As has been noted, having reviewed all this evidence, including evidence on the Department’s file such as the lengthy typed statement complete with photographs prepared by the sponsor [Sponsor A], the Tribunal did not consider a hearing to be necessary. This is because, 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))

28. 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.

29. 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 1 October 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))

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

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

    CONCLUSION

32. 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.

33. Given the medical evidence in respect of the sponsor, any efforts the Department of Home Affairs may make in expediting this case would be appreciated.

    DECISION

34. 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(1) 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.