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

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).
On 24 October 2019, the visa applicant, who is a national of Samoa, applied for the visa.
At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).
The review applicant provided the Tribunal with a copy of the refusal decision (the primary decision).
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).
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.
The delegate…

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 2117772 (Migration)

Details

AGLC: 2117772 (Migration) [2022] AATA 3956
Case: [2022] AATA 3956
Decision Date: 14 October 2022

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision regarding a Subclass 102 (Adoption) visa application. The applicant sought to adopt a child who had been legally adopted in their home country. The core dispute revolved around whether the adoptive parents met the residency requirements stipulated in the Migration Regulations 1994 at the time the visa application was lodged.

The Tribunal was required to determine if the visa applicant met the criteria for a Subclass 102 (Adoption) visa, specifically clause 102.211(2)(b)(ii), which mandates that the adoptive parent had been residing overseas for more than 12 months at the time of the application. The Tribunal also considered whether the applicant met the requirements for a Subclass 101 (Child) visa or a Subclass 117 (Orphan Relative) visa, as these were alternative pathways for a Child (Migrant) (Class AH) visa. Additionally, the Tribunal considered a request to refer the matter to the Minister for consideration under section 351 of the Migration Act 1958 due to strong compassionate circumstances.

The Tribunal affirmed the delegate's decision, finding that the adoptive parents did not meet the requirement of having resided overseas for more than 12 months at the time of the application. While the adoptive parents had been caring for the child overseas for a significant period, their return to Australia for reasons including the sponsor's work, another child's education, and the sponsor's wife's medical treatment meant they had not satisfied this specific criterion. The Tribunal acknowledged the extensive evidence of the adoptive parents' ongoing care and financial support for the child after their return to Australia, and the emotional impact of the separation. Despite these compassionate circumstances, the Tribunal concluded that the applicant did not meet the legislative requirements for the visa subclasses in question.

Consequently, the Tribunal affirmed the decision under review, meaning the visa application was not successful. The Tribunal did not consider it appropriate to refer the matter for ministerial intervention, as the circumstances, while demonstrating significant parental care, did not meet the threshold for unique or exceptional circumstances warranting such a referral under the relevant guidelines.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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. 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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