2117772 (Migration)

[2022] AATA 3956

2117772 (Migration) [2022] AATA 3956 (14 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2117772

MEMBER:Justine Clarke

DATE:14 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 14 October 2022 at 3:36pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – legally adopted in home country – adoptive parents had not been residing outside Australia for more than 12 months when application made – residing in Australia for sponsor’s work, another child’s education and sponsor’s wife’s medical treatment – applicant does not meet alternative requirements for this or related subclasses – strong compassionate circumstances and unreasonable result – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5CA(2), 65, 351
Migration Regulations 1994 (Cth), rr 1.04(1)(b), 1.14(b), 1.14A(2), Schedule 2, cls 101.211(c)(ii), 102.211(1), (2)(b)(ii), 117.211(b)

CASE
EC v MIMIA [2004] FCA 978

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 21 October 2021 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 24 October 2019, the visa applicant, who is a national of Samoa, applied for the visa.

3. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).

4. The review applicant provided the Tribunal with a copy of the refusal decision (the primary decision).

5. First, the delegate assessed the application pursuant to the provisions for a Subclass 102 (Adoption) visa. The delegate refused to grant the visa on the basis that the visa applicant did not meet the requirement in cl 102.211(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This provision requires that, at the time of application, the visa applicant meets the requirements of subclause (2), (3), (4) or (5). The delegate assessed the application pursuant to cl 102.211(2) and found that the visa applicant did not meet cl 102.211(2)(b)(ii) because, at the time of application on 24 October 2019, the sponsor and his wife—the visa applicant’s adoptive parents—had not been residing outside Australia for more than 12 months. The delegate does not appear to have considered whether the visa applicant met the alternative requirements in subclauses (3), (4) or (5).

6. The delegate also considered whether the visa applicant met the provisions of a Subclass 101 (Child) visa. However, they found that she did not meet the requirements because, at the time that the visa applicant was legally adopted, the sponsor (the review applicant) was not an Australian citizen.

7. The delegate also considered whether the visa applicant met the provisions of a Subclass 117 (Orphan Relative) visa. However, they found that she did not meet the requirements because ‘[t]he applicant’s adoptive parents are alive, their whereabouts are known and they are not permanently incapacitated’.

8. On 13 November 2021, the review applicant, who is the adoptive father of the visa applicant, applied to the Tribunal for review of the primary decision. The review applicant has not been represented in this review.

9. On 27 January 2022, the review applicant requested priority processing of the application for review, noting the visa applicant’s age (then under [Age 2] years).

10. On 14 February 2022, the Tribunal agreed to priority processing.

11. On 4 April 2022, the review applicant followed up on the status of the review.

12. On 18 August 2022, the matter was constituted to the presiding Member.

13. Throughout the course of this review, the review applicant has submitted various submissions and evidence in support of the case.

14. On 30 September 2022, the review applicant appeared, by video from Queensland, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the review applicant’s wife, by video from Samoa. The visa applicant also attended the hearing by video from the same location as her mother, [Ms A]. The visa applicant was prepared to give oral evidence but, having reviewed two written statements that had been made by the visa applicant (one that was before the delegate and one that was filed in this review), the Tribunal did not consider it necessary to hear her oral evidence. The Tribunal also heard oral evidence from [Mr B], the son of the review applicant and his wife, by video from a separate location. The review applicant and [Ms A]’s other son, [Mr C], also attended the hearing by video from another location but he did not give any oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages so that the visa applicant could fully understand the proceedings. The interpreter attended the hearing by video from yet another separate location.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether, at the time of application on 24 October 2019, the visa applicant met the relevant time of application requirements for the grant of a Subclass 102 (Adoption), Subclass 101 (Child) or Subclass 117 (Orphan Relative) visa.

    Does the visa applicant meet the requirements for a Subclass 102 (Adoption) visa?

17. The primary criteria for a Subclass 102 visa include cl 102.211, which is a time of application criterion. As has already been noted, cl 102.211(1) requires the applicant to meet the requirements of subclause (2), (3), (4) or (5). As the delegate assessed the application pursuant to the provisions in subclause (2), it is apt to note subclause (2) in full here.

    (2) An applicant meets the requirements of this subclause if:

    (a) the applicant has not turned 18; and

    (b) the applicant was adopted overseas by a person who:

    (i) was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and

    (ii) had been residing overseas for more than 12 months at the time of the application; 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 lawfully acquired full and permanent parental rights by the adoption.

18. The evidence before the Tribunal is sufficient to satisfy the Tribunal that, at the time of application, the visa applicant was [Age 1] years of age and that, at the time of this decision, she is [Age 2] years of age. Accordingly, the Tribunal finds that cl 102.211(2)(a) is satisfied.

19. The Tribunal has reviewed the copy of the signed and sealed Order of Adoption in respect of the overseas adoption of the visa applicant by the review applicant and his wife [Ms A]. A Justice of the Family Court of Samoa made the order [in] April 2016. The Tribunal is satisfied that, both adoptive parents lawfully acquired full and permanent parental rights by the adoption and that cl 102.211(2)(d) is met.

20. At the time of the overseas adoption [in] April 2016, the review applicant was the holder of a permanent visa, having been granted a Partner (Migrant) (Class BC) Partner (Subclass 100) visa [Number] days earlier, on 15 April 2016. Accordingly, the Tribunal is satisfied that cl 102.211(2)(b)(i) is met.

21. The Tribunal is mindful of the review applicant’s evidence, in his statement of 10 November 2021, that, ‘[w]e lived and took care of [the visa applicant] for 60 months (5 years) prior to us moving to Australia in 2015 and 2016’. In [Ms A]’s signed statement of 30 November 2021, she explained that she had returned to live in Australia in 2015 and that the review applicant moved to Australia in 2016. She stated that they made the move ‘for our children’s benefit and betterment of their future lives’. In the review applicant’s statement of 27 September 2022, he stated:

    The cost of moving to Australia was one of the factors on delaying applying for the applicant’s Adoption visa with the Australian Immigration Office. After I (the sponsor) secured a job and some funds, we then put in the application for the applicant’s adoption visa.

22. It will be recalled that the delegate was not satisfied that, at the time of application on 24 October 2019, the review applicant and his wife had spent the preceding 12 months outside of Australia. The delegate explained:

    Departmental records confirm that the sponsor spent approximately 8 days outside Australia from [11].2018 – [12].2018. The sponsor is married and his spouse’s movements shows that she has also spent approximately 7 months outside Australia from [11].2018 –[12].2018; [12].2018 – [04].2019; [06].2019 – [08].2019 and [10].2019 – [12].2019 in the 12 months preceding the application.

23. Accordingly, the delegate found that cl 102.211(2)(b)(ii) was not met.

24. In this review, the applicant did not seek to dispute the accuracy of the movement records referred to in the primary decision. Rather, evidence was filed explaining the family’s movements over recent years. For example, the document titled ‘Entry of Dates and Events in the Life of: [the visa applicant],’ the review applicant’s and [Ms A]’s statement of 10 November 2021 and [Ms A]’s signed statements of 30 November 2021 and 19 September 2022, all of which are on the Tribunal’s file. In the later document, [Ms A] stated, amongst other things, the following:

    My movements between Australia and Samoa were strictly for the purpose of being with our daughter and had nothing to do with making sure we followed the 12 months, outside of Australia criteria as stated in your visa granting calculations. With all honesty, we were not thinking of that, or totally did not understand it from reading up all the materials. Our visit to see our daughter is strictly on the basis of parents and daughter being together during a tough time with your visa process. I am a mother of a son that graduated in Nov. 2018 from High School in Australia and a son graduated from University in [Country] in Dec. 2017. We try our very best as funds and time permits, to be with all our children. [The visa applicant] totally included.

    My husband [the review applicant], the head of our family is the breadwinner and usually stays back in Australia, while I travel around to visit the children. … Another reason of my movements being frequent and being in Australia for the most part is the fact that I am diabetic and have high cholesterol. I need to be in Australia for quarterly doctor’s check-up and to receive my medication.

25. The Tribunal’s file contains a copy of the review applicant’s movement records which accords with the statements made by the delegate in the primary decision. The records evidence that on 24 October 2019, when the visa applicant applied for the visa, the review applicant was onshore in Australia and that in the preceding 12 months before that date, he had been offshore for a few days only—from [November] 2018 to [December] 2018. Accordingly, the Tribunal finds that, at the time of the application for the visa on 24 October 2019, the review applicant had not been residing overseas for more than 12 months. Accordingly, the visa applicant cannot meet cl 102.211(2)(b)(ii) based on the review applicant’s residence.

26. The Tribunal has no reason to believe that the delegate’s statements in the primary decision about [Ms A]’s movements in that 12-month period before the application for the visa was lodged on 24 October 2019 are not also accurate. Accordingly, the Tribunal finds that the visa applicant also cannot meet cl 102.211(2)(b)(ii) based on [Ms A]’s residence.

27. Accordingly, the visa applicant does not meet cl 102.211(2).

28. In addition, the Tribunal finds that the visa applicant does not meet the alternative provisions in subclauses (3), (4) or (5).

29. Subclauses (3) and (4) are not relevant to the visa applicant’s circumstances as both concern prospective adoptions yet at the time of application on 24 October 2019, the visa applicant had already been adopted. Accordingly, the Tribunal finds that the visa applicant does not meet cl 102.211(3) or (4).

30. The Tribunal also finds that subclause (5) is not relevant to the visa applicant’s circumstances because it concerns an adoption in accordance with the ‘Adoption Convention’ in an ‘Adoption Convention country’. The terms ‘Adoption Convention’ and ‘Adoption Convention country’ are defined in reg 1.03 of the Regulations. ‘Adoption Convention’ is defined as meaning the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993. ‘Adoption Convention country’ is defined as meaning ‘a country that is a Convention country under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998’. Schedule 2 of those Regulations lists the Convention countries. Samoa is not listed in Schedule 2. Accordingly, the Tribunal finds that the visa applicant does not meet cl 102.211(5).

31. The Tribunal finds that, at the time of application on 24 October 2019, the requirements of cl 102.211 were not met. According, the visa applicant does not meet the requirements for a Subclass 102 (Adoption) visa.

32. The Tribunal acknowledges the hardship the requirement for the adoptive parent’s offshore residence for the 12 months preceding the lodgement of the visa in cl 102.211(2)(b)(ii) has caused the family—especially the visa applicant—in this case because it means that a Subclass 102 (Adoption) visa is not available to her.

    Does the visa applicant meet the requirements for a Subclass 101 (Child) visa?

33. The primary criteria for a Subclass 101 visa include cl 101.211, which is a time of application criterion. Clause 101.211 relevantly provides:

    (1)  The applicant:

    (a)is a dependent child of:

    (i)an Australian citizen; or

    (ii)the holder of a permanent visa; or

    (iii)an eligible New Zealand citizen; and

    (b)subject to subclause (2), has not turned 25; and

    (c)either:

    (i)is:

    (A)  the child (other than an adopted child); …

    …

    of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or  

    (ii)was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.  

34. At the time the visa applicant applied for the visa on 24 October 2019, the review applicant was the holder of a permanent visa. On 1 November 2021, he became an Australian citizen (a copy of his certificate of Australian citizenship is on the Tribunal’s file). The evidence before the Tribunal suggests that the visa applicant would meet cl 101.211(a) and (b). However, the Tribunal finds that she cannot meet cl 101.211(c). She is expressly prevented from meeting cl 101.211(c)(i)(A) because she was adopted by the review applicant and his wife. (She is also unable to meet cl 101.211(c)(i)(B) because she is not a ‘step-child’). Accordingly, to meet cl 101.211, she must meet cl 101.211(c)(ii).

35. It will be recalled that, in the primary decision, the delegate found that the visa applicant did not meet the requirements of a Subclass 101 because, at the time that the visa applicant was legally adopted, the review applicant was not an Australian citizen. The Tribunal considers that the delegate erred when refusing the visa on this basis.

36. The Tribunal finds that, at the time of application on 24 October 2019, the visa applicant did not meet cl 101.211(c)(ii) because, at the time she was formally adopted overseas by the review applicant and his wife [in] April 2016, the review applicant was the holder of a permanent visa and [Ms A] was an Australian citizen. Thus, the visa applicant was not ‘adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen’ (emphasis added).

37. For this reason, the Tribunal finds that, at the time of application on 24 October 2019, the requirements of cl 101.211 were not met. According, the visa applicant does not meet the requirements for a Subclass 101 (Child) visa.

38. In the review applicant’s and [Ms A]’s statement of 10 November 2021, the review applicant stated:

    I, the sponsor only got my permanent visa [Number] days before [the visa applicant]’s Adoption Order was signed in Samoa. We submitted the application for Adoption on 28 Jan 2016. I wished the Adoption signing came before my permanent visa (15 April 2016), but it was out of my control.

39. The Tribunal acknowledges that the Department’s decision to grant the review applicant the Partner (Migrant) (Class BC) Partner (Subclass 100) visa on 15 April 2016 and not [Number] days later, after the formal adoption order had been made in Samoa [in] April 2016, has caused the family—especially the visa applicant—great hardship because it means that a Subclass 101 (Child) visa is not available to her.

    Does the visa applicant meet the requirements for a Subclass 117 (Orphan Relative) visa?

40. The primary criteria for a Subclass 117 visa include cl 117.211, which is a time of application criterion. Clause 117.211 provides:

    The applicant:

    (a)  is an orphan relative of an Australian relative of the applicant; or

    (b)  is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).

41. The term ‘orphan relative’ is defined in reg 1.14, which provides:

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)  the applicant:

    (i)has not turned 18; and

    (ii)does not have a spouse or de facto partner; and

    (iii)is a relative of that other person; and

    (b)  the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c)   there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

42. It will be recalled that, in the primary decision, the delegate found that ‘[t]he applicant’s adoptive parents are alive, their whereabouts are known and they are not permanently incapacitated’.

43. In [Ms A]’s signed statement of 19 September 2022, she queried which family this provision was referring to, stating that she and the review applicant and their two sons were the only family that the visa applicant had ever known.  

44. At first glance, reg 1.14(b) and/or cl 117.211(b) may suggest that a Subclass 117 (Orphan Relative) visa may be available to the visa applicant, but the Tribunal finds that the visa applicant does not meet the requirements.

45. First, to answer [Ms A]’s query. With respect to reg 1.14(b), the term ‘parent’ needs to be defined to ascertain whether the reference is to a biological parent or to an adoptive parent.

46. ‘Parent’ is defined in s 5 of the Act as follows:

    without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.

47. ‘Child’ is defined in s 5CA of the Act.

48. 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. 

1. 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.

2. The Executive Government has made regulations in this respect.

3. 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; and

   (b)  the child is taken not to be the child of any other person (including a person who had been the child’s parent … before the adoption).

4. Note 1 to this regulation states, ‘[a] child cannot have more than 2 parents … unless the child has been adopted under arrangements mentioned in paragraph 1.04(1)(c)’.

5. 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’.

6. 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.

7. As has been explained, the review applicant and [Ms A] adopted the visa applicant in Samoa—not Australia. Accordingly, reg 1.04(1)(b) is the applicable provision—not reg 1.04(1)(a).

8. Regulation 1.04(1)(c)(i)(A) also does not apply because formal adoption was available in Samoa and the order made by a Justice of the Family Court of Samoa [in] April 2016 is evidence of that. The Tribunal considers that is also not possible to find that formal adoption was not reasonably practicable in the circumstances, for the purposes of meeting reg 1.04(1)(c)(i)(B), given that, on 28 January 2016, the review applicant and [Ms A] applied to adopt the visa applicant and by [April] 2016 the Court in Samoa had made a formal adoption order.

9. Accordingly, for the purposes of the Act and the Regulations (and of course, most importantly, for the visa applicant’s lived experience), the review applicant and [Ms A] are the parents of the visa applicant. Both the review applicant and [Ms A] are alive, their whereabouts are known, and they are not permanently incapacitated. Thus, at the time she applied for the visa, the visa applicant did not meet the requirement in reg 1.14(b). This means she cannot meet cl 117.211(a) of Schedule 2 to the Regulations.

10. Can the visa applicant meet cl 117.211(b)? That is, is it the case that she ‘is not an orphan relative only because [she] has been adopted by the Australian relative mentioned in [cl 117.211(a)]’?

11. The Tribunal finds that the visa applicant does not meet this provision either. The Tribunal makes this finding because the review applicant and [Ms A] are not biological relatives of the visa applicant. 

12. The Federal Court of Australia considered the issue of whether a visa applicant could meet cl 117.211(b) in circumstances where she had been adopted, but not by an existing relative in the case of EC v MIMIA [2004] FCA 978. The Court explained, at [27]:

    When cl 117.211(b) is read with cl 117.211(a), the meaning of cl 117.211(b) is patent. Clause cl 117.211(b) applies where the visa applicant would be ‘an orphan relative of an Australian relative of the applicant’ if he or she had not been adopted by that Australian relative.

13. The Court held that the Explanatory Statement to Migration Amendment Regulations 2002 (Cth) (No 2) confirmed that cl 117.211(b) ‘provides for the situation where an adoption prevents a person satisfying the definition of “orphan relative” and not for the circumstance where an adoption enables a person to satisfy the definition of “relative” but not “orphan relative”’.[1]

    [1] At [29].

14. So, in order for cl 117.211(b) to apply, there must be a ‘relative’ relationship and that relative relationship must have existed outside of, and predate, the adoption relationship.

15. In the case before the Court, the Court found that, ‘[t]he adopted child would not have been an “orphan relative” of either adoptive parent but for her adoption, because, but for her adoption, she would not be “a relative” of either of them and could not satisfy reg 1.14(a)(iii) [within the definition of “orphan relative”]’.[2]

    [2] At [27].

16. The same is true in the present case before the Tribunal. This means that the visa applicant cannot meet cl 117.211(b) of Schedule 2 to the Regulations.

17. The Tribunal finds that, at the time of application on 24 October 2019, the requirements of cl 117.211 were not met. According, the visa applicant does not meet the requirements for a Subclass 117 (Orphan Relative) visa.

    Conclusion

18. As the visa applicant does not meet the requirements of a Subclass 102 (Adoption) visa, a Subclass 101 (Child) visa or a Subclass 117 (Orphan Relative) visa, she does not meet the requirements for the grant of a Child (Migrant) (Class AH) visa and accordingly, the decision under review must be affirmed.

    Consideration of request for referral to the Minister for intervention

19. At the hearing, the review applicant formally requested the Tribunal to refer the matter to the Minister for his consideration.

20. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether the Tribunal had the power to make that other decision or not.

21. In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Direction of the President of the Tribunal titled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

22. Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’. The Direction also provides that a Member should set out, in their reasons for decision, the circumstances which the Member considers warrant the case being brought to the Minister’s attention.

23. The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.

24. The Tribunal notes that, in this review, the review applicant and [Ms A] submitted many explanatory statements, photographs and other evidence of their financial support and other care of the visa applicant over many years.

25. In the words of the review applicant, in his and [Ms A]’s letter of 10 November 2021:

    When we moved to Australia, we continued with the support for [the visa applicant], so she does not feel left out from her family. This is done by sending her money via those who are looking after her in our absence, for all her living expenses (food, travel, clothing, school fees, medical, etc). And, we also talk with her on the phone, video and voice calls, a few times every week, even helping her with her school home works. My wife wrote a children’s book on the pandemic and dedicated it to her. We also sent freight boxes of food and clothing. 

26. In the words of [Ms A], in her signed letter of 30 November 2021:

    I fell in-love with [the visa applicant] as my daughter and she is a special soul that I felt responsible for …

    …

    Our daughter [the visa applicant] needs us around her. … We have tirelessly contributed a lot of funds and time to her upbringing and ensuring that she is SAFE, and we try our very best to ensure she is Happy. …

    … Myself and my husband [the review applicant] are [the visa applicant]’s only parents. Our sons are her only siblings. That is all [the visa applicant] knows.

27. In the review applicant’s request for priority processing, lodged on 27 January 2022, he stated:

    she has been separated from her family for too long. … It breaks our hearts, and especially [the visa applicant]’s, that she is not here with us for that long.

    We are also worried about her safety and well-being as a young girl growing up without her family.

28. In [Ms A]’s signed statement of 19 September 2022 she reiterated much of her earlier evidence. She concluded by stating:

    We ask for your kind and favourable acceptance of our daughter to join us in Australia rather than dividing an Australian family as I will continue to visit and stay for long periods with our daughter in Samoa and leave behind my husband and sons if the alternative is given. I strongly feel here that our daughter’s fundamental/human rights and freedoms as a daughter of Australians are not fully protected or realised here. 

29. The review applicant (who is, as mentioned, an Australian citizen), [Ms A] (who is an Australian citizen) and [Mr B] (who is Australian-born) impressed the Tribunal as very credible persons at the hearing and the Tribunal accepts the written statements that the review applicant and [Ms A] have made as well as all three persons’ oral evidence. It was very clear to the Tribunal how worried they have all been about the very lengthy separation from the visa applicant and how they wish her to join the family in Australia.

30. For example, at the hearing, [Ms A] explained that her sons had not wanted to stay in Samoa for their education so that is why the family had moved to Australia. She said that she had travelled back to Samoa regularly to spend time with the visa applicant until the COVID-19 pandemic and the ensuing border closures had made that impossible. She was moved to tears when she described how they had had to arrange seven different carers for the visa applicant in Samoa in the years that they have been waiting to be able to bring the visa applicant to Australia. She also told the Tribunal that as soon the international borders re-opened after the COVID-19 pandemic, she had taken the first commercial flight to Samoa to be reunited with the visa applicant. She pleaded for assistance, telling the Tribunal that ‘she is the only girl we have’. She gave oral evidence that the visa applicant does not know her biological parents and may, at best, have said ‘hello’ to the biological mother on one occasion.

31. [Mr B] told the Tribunal that he and the visa applicant had grown up together. He said that he had not seen the visa applicant for a while and that the separation had been very hard on the family.

32. The Tribunal also notes the visa applicant’s evidence in her handwritten, signed letter of 19 September 2022. Amongst other things, she stated:

    My mother [Ms A] has always travelled to Samoa to be with me, but I wish to also see my father and my brothers. I know they all work full time and are unable to come see me in Samoa. … I miss my family and really wish to be with them in Australia. I am very happy when my mother is here in Samoa with me and very sad when she leaves. I would be most happy if I can join my family in Australia and see them each day.

33. In this case, the Tribunal considers that the facts as claimed by the review applicant and his family seem to best be described as:

    • ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident’;
    • ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’ and
    • ‘the application of relevant legislation leads to … unreasonable results in a particular case’.

34. Having considered all the evidence before it, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    decision

35. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Justine Clarke
    Member