2110626 (Migration)

[2021] AATA 5279

2110626 (Migration) [2021] AATA 5279 (22 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110626

MEMBER:Andrew McLean Williams

DATE:22 November 2021

PLACE OF DECISION:  Brisbane

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; and

·cl.802.213 of Schedule 2 to the Regulations.

Statement made on 22 November 2021 at 3:02pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – customary adoption by uncle and aunt, now permanent residents in Australia, even though formal adoption a possibility – relationship with parents not severed – adoption subsequently ratified by court in home country – uncle and aunt had not resided outside Australia for more than 12 months at time of adoption – compelling or compassionate circumstances – no specific criteria – uncle’s work and aunt’s periodic travel to home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CA(1)(b), 65
Migration Regulations 1994 (Cth), r 1.04(1)(b), (c), (2)(c), Schedule 2, cls 802.212, 802.213(1)(b), (5)(a), (b)(i), (ii)

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 by a Delegate of the Minister for Home Affairs that was made on 16 August 2021, by which the Delegate refused to grant the Applicant a Child (Residence) (Class BT) visa, pursuant to s.65 of the Migration Act 1958 (‘the Act’).

2. [The Applicant] is a [Age] year old child from Papua New Guinea (PNG), who had applied for the visa on 30 April 2021, after having been customarily adopted in PNG by his Uncle and Aunt, [Mr A] and [Mrs B], who are each PNG citizens who are now permanent residents in Australia.

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).

4. The criteria for a Subclass 802 (Child) visa are as 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 (clauses 802.216 and 802.226A refers), the criteria to be met in this case include each of clauses 802.212, and 802.213.

5. Clause 802.212 is a ‘time of application’ criteria, that requires that the Applicant child be the ‘dependent child’ of a person who is an Australian citizen, or an Australian permanent visa holder, or an eligible New Zealand citizen.  ‘Dependent child’ is then defined as the ‘child of a person’ who has not yet turned 18. 

6. Under s.5CA of the Act, ‘child of a person’ may include an adopted child within the meaning of that term as used in the Migration Act.  In order to then qualify as an ‘adopted child’, the applicant must meet the adoption requirements specified in Regulation 1.04(1), which requires that the adoption be either:

   (a)An adoption made in Australia, in accordance with the formal adoption arrangements specified in a law of an Australian State or Territory; or

   (b)A formal adoption made in accordance with the laws of another country; or

   (c)An adoption pursuant to other arrangements, entered into outside Australia, that are taken to be in the nature of an adoption, pursuant to sub-regulation 1.04(2).    

7. The Delegate approached [the applicant]’s case as if it were a sub-regulation 1.04(2) matter.  Sub-regulation 1.04(2) recognises the fact that customary adoptions do occur in some overseas countries, of which PNG is one.  Those overseas customary adoption practices may also be accepted as giving rise to an adoption for purposes of Australian migration law, on the proviso that the customary adoption also meets the specific additional requirements that are set out in sub-regulation 1.04(2).  These require that:

   (a)The adoption arrangement under examination accord with a recognised cultural or customary practice in the place of the adoption; and

   (b)The child-parent relationship between the adoptee child and the adoptive parents arising in consequence of the adoption must be one that is significantly closer than is the relationship between the adoptee child and that with any other adult person; and

   (c)The Minister must be satisfied that a formal adoption in that other country was not available; or was not reasonably practicable in all of the circumstances, and that the adoption is not a contrived arrangement, designed to circumvent Australian migration requirements. 

8. Clause 802.213 is another ‘time of application’ criteria, and applies in the specific case of Australian citizens, permanent visa holders, and eligible New Zealand citizens who are the adoptive parents of an overseas child.  Amongst other things, cl. 802.213(5) requires that the adoptive parents have acquired full and permanent parental rights by means of the overseas adoption.

9. On 16 August 2021, the Delegate refused to grant the visa to [the applicant], on the basis of her having concluded that [the applicant]’s case did not meet the requirements of either clauses 802.212, or 802.213. 

10. As to clause 802.212, the Delegate took the view that [the applicant]’s customary adoption did not satisfy regulation 1.04(2)(c), because formal adoption is a possibility in PNG; such that the Delegate took the view that formal adoption should have been utilised in [the applicant]’s case, in lieu of customary adoption.

11. Furthermore, the Delegate observed at several places in her Decision Record that [the applicant]’s customary adoption certificate from PNG expresses the words: ‘There will not be any restrictions for the child’s access to the natural parent’, before her then concluding that these words have the effect that the adoption arrangement regarding [the applicant] does not satisfy regulation 1.04(2)(b), because the child-parent relationship between [the applicant] and his biological parents had not been severed, and then replaced, by a significantly closer parental relationship with his adoptive parents.

12. In the decision now under review the Delegate then took the further view that clause 802.213(5) was unable to be satisfied, either. Here, the Delegate concluded that:

    (i)neither of [Mr A] or [Ms B], as the adoptive parents, had resided outside Australia for more than 12 months when [the applicant]’s adoption had taken place (per cl. 802.213(5)(b)(i)); and

    (ii)there were insufficient compassionate or compelling circumstances to overcome subparagraph 802.213(5)(b)(i); and

    (iii)[Mr A] and [Ms B] had not obtained full and permanent parental rights over [the applicant], in the manner required by clause 802.213(5), because of the inclusion of the expression ‘There will not be any restrictions for the child’s access to the natural parent’, on the face of [the applicant]’s PNG Certificate of Customary Adoption.

13. [Mr A] and [Ms B] appeared before the Tribunal on 26 October 2021 to give evidence and present submissions on behalf their infant son, the Applicant.  Owing to his tender age, [the applicant] did not himself make an appearance before the Tribunal. 

14. [The applicant] and his adoptive parents were each represented in relation to this review by [Mr C] of [Solicitors]. [Mr C] also appeared before the Tribunal during the hearing on 26 October 2021, and had submitted detailed written submissions and supporting documents prior to the hearing, under cover of correspondence from his firm, dated 18 October 2021.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted to the Department for reconsideration, in light of the directions made by the Tribunal at the end of these reasons.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. As articulated in the preceding paragraphs, the issue in the present case is whether [the applicant]’s adoption in PNG meets the requirements of clauses 802.212 and 802.213, in Schedule 2 of the Regulations.

    Does [the applicant]’s Adoption meet the requirements of Clause 802.212?

17. In order to meet the requirements of cl.802.212, the Applicant child must:

    (a)Be the dependent child of a person who is an Australian citizen, holder of a permanent visa or an eligible New Zealand Citizen; and

    (b)Have not turned 25 years of age.

18. In order to be the (dependent) ‘child of a person’, the Applicant must satisfy the definitional requirements for same in s.5CA of the Act, which can be achieved by means of their being an adoptive child, pursuant to s.5CA(1)(b). A further qualification arises in the case of adoption cases by reason that the adoption must also meet the additional requirements set out in regulation 1.04, as have already been set out in these reasons, further above.

19. The Delegate took the view that [the applicant]’s adoption fell into the species of customary adoption recognised in regulation 1.04(1)(c), yet that it thereafter failed to meet the additional requirements for customary adoption cases as are set out in regulation 1.04(2). 

20. Yet, the Applicant now submits on the hearing of this review that [the applicant]’s adoption in PNG meets the requirements of regulation 1.04(1)(b), by reason of it being a customary adoption that was subsequently ratified (and thus formalised) by the Courts in Papua New Guinea; such that the alternate pathway - in regulation 1.04(1)(c) - does not need to be considered.    Ultimately, the Tribunal accepts that submission, and now finds that [the applicant] has been the subject of a formal overseas adoption (per r.1.04(1)(b)), and in what follows records the basis for that conclusion.

21. [Mr A] and [Ms B] are a married couple who are permanently resident in Australia, who do not have any biological children of their own.  [Mr A] has a job working in project management and [Ms B] is engaged in full-time home duties, currently caring for [the applicant].

22. The Applicant in these proceedings, now aged [Age] years, was born on [Date] at [Village], [District] Central Province. in Papua New Guinea.  [The applicant]’s biological father is the younger brother of [Ms B], and his biological mother is the girlfriend of biological father.  [The applicant] was an unplanned pregnancy.  In light of that, and because [Mr A] and [Ms B] had been unsuccessful in having children of their own, a family arrangement was made wherein it was agreed that [Mr A] and [Mr B] would adopt [the applicant], after this birth.

23. [Mr A] and [Ms B] then sought out the assistance of the PNG National Office for Child and Family Services in order to ascertain the correct process for their adopting [the applicant].  They were advised as to the route that should be followed; and were advised that the correct path was by means of a customary adoption. 

24. After [the applicant] had been customarily adopted - to the evident satisfaction of the PNG Department of Community Development and Religion National Capital District Family Welfare Services Office ([in] November 2019) - the PNG Office of Child and Family Services made an application on that same date to the PNG Family Court, to formalise and recognise the aforesaid customary adoption. 

25. [In] December 2019, a Magistrate of the PNG Family Court made an order that all of the requirements for the customary adoption of [the applicant] had been fulfilled, and in light of that issued  a certificate of customary adoption, pursuant to s.54(1) of the PNG Adoption of Children (Customary Adoption) Act (1969).  Section 54(2) of that Act provides that a certificate issued under s.54(1) is ‘conclusive’ as to the fact of an adoption.

26. The Tribunal is satisfied that the effect of the s.54(1) certificate issued in the Family Court of PNG meets the requirements of a formal adoption made in accordance with the Sovereign laws of PNG.  Although the possibility exists for there to be a formal adoption in PNG, the parallel possibility also exists under PNG law for an initial customary adoption to be subsequently ratified, by means of the court application process, as was used in this instance in the case of [the applicant]’s customary adoption.  Either route is now sufficient, for purposes of Regulation 1.04(1)(b) of the Australian Migration Regulations.

27. In light of the foregoing, the Tribunal is satisfied that this particular adoption is more appropriately assessed via regulation 1.04(1)(b) and a misunderstanding by the Delegate of the customary adoption ratification process by the courts in PNG has caused her to instead approach the assessment on the premise that regulation 1.04(1)(c) was applicable, instead. Accordingly, the Tribunal is now satisfied that the adoption of [the applicant] by his adoptive parents satisfies the requirements of cl.802.212.

    Does [the applicant]’s Adoption meet the requirements of Clause 802.213?

28. In circumstances such as those arising in this case, wherein the Applicant child claims to be the dependent adoptive child of an Australian citizen, permanent visa holder or eligible New Zealand citizen, clause 802.213 requires that the Applicant child must have been under 18 when the adoption took place (802.213(1)(a)); and must - because of clause 802.213(1)(b) - also 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, as are set out in sub-clauses (2), (3), (4) or (5) of cl.802.213 (now extracted in the attachment to this decision). 

29. [The applicant] is currently aged only [Age], such that the threshold age criteria stipulated in clause 802.213(1)(a) is a matter that is easily met by him. Sub-regulations 802.213(2), (3) & (4) are not applicable to this matter. Accordingly [the applicant]’s case must satisfy sub-regulation 802.213(5).

30. [Mr A] and [Ms B] were each the holder of a permanent residency visa in Australia when [the applicant] was adopted.  Accordingly sub-regulation 802.213(5)(a) is satisfied.  Consideration next must turn to the aggregate requirements of sub-clauses 802.813(5)(b), (c), & (d).

    (b)either: (i) 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.

    30.1[Mr A] and [Mr B] had been resident in Brisbane for the majority of the time since the birth in PNG of [the applicant] and up until the date of his legal adoption, [in] December 2019.  By that stage [the applicant] had himself been living in Australia since May of 2019.  Accordingly, the Applicant is unable to satisfy (i), and now seek to satisfy sub-regulation 802.213(5)(b) by means of sub-paragraph (ii): ‘compelling or compassionate’ circumstances. 

    Compelling or compassionate circumstances are not defined in either the Act or Regulations, and must be considered on a case by case basis, in light of all of the circumstances.

    In relation to exceptions to the 12 month overseas resident requirement, Departmental policy PAM3: Sch2Visa 802 – Child (annexure 3) indicates no specific criteria, and MERELY specifies that ‘Officers may use this waiver without referral to National Office, [by] exercising their own judgement in deciding whether the circumstances of the case are ‘compelling or compassionate’ or not; no further policy guidance is currently considered necessary’. 

    [Mr A] and [Ms B] informed the Tribunal that, AS at the time of the birth of [the applicant], [Mr A] was in full-time employment in Brisbane and had to be in Brisbane because of those work commitments.  Meanwhile, [Ms B] was searching for employment, whilst also residing in Brisbane with her husband, yet also periodically travelling back to PNG in order to see [the applicant], (who was at that stage in the care of her mother, [the applicant]’s Grandmother) whenever their finances permitted.  Mr and Mrs [B] explained that they were not in the luxurious financial position to be able to cease [Mr A]’s employment in Brisbane in order to be in PNG for the 12 months prior to [the applicant]’s adoption; and nor would they have been able to meet  the costs of [the applicant]’s care in PNG; or the legal costs associated with his PNG adoption, had one or both of them returned to PNG for the 12 month period contemplated by r.802.213(5)(b)(i).  The Tribunal is satisfied that this rationale is sufficient to be categorised as compelling or compassionate, such that the Tribunal is now satisfied in its exercise of the discretion that the Applicant satisfies the requirement in r.802.213(5)(b)(ii).

    (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

    30.2In the circumstances of this case wherein [Mr A] and [Ms B] were resident in Brisbane, r.802.213(5)(c) is not applicable.

    (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.

    30.3The Tribunal is satisfied that the Applicant’s adoptive parents have lawfully acquired full and permanent parental rights over [the applicant] by means of their adoption of him.  In the Tribunal’s view, the reservation contained on the face of the PNG certificate of customary adoption: “There will not be any restrictions for the child’s access to the natural parent” - particularly when these words are now read in the context of the other parental rights and obligations now inuring to [Mr A] and [Ms B] in consequence of the order made by the Sovereign Courts of PNG - are not such as to now diminish the parental rights of [Mr A] and [Ms B] obtained by means of the adoption by them of [the applicant].

31. Accordingly, the criteria in clause 802.213 are also met in this instance.

32. Given the Tribunal’s findings, the appropriate course is now to remit the matter back to the Minister to consider the remaining criteria for the visa in light of the Tribunal’s determination.

    DECISION

33. 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; and

    ·cl.802.213 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    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.