2305171 (Migration) - [2023] AATA 3237

2305171 (Migration) [2023] AATA 3237 (25 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)
CASE NUMBER:  2305171
MEMBER:Justine Clarke
DATE:25 July 2023
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 25 July 2023 at 6:00pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – neither adoptive parent residing overseas for 12 months before adoption took place – compelling or compassionate circumstances to waive requirement – department did not invite evidence or submissions – circumstances not limited to why adoptive parents could not reside overseas – adoptive mother remained in home country for a year after child adopted – residence not contrived to circumvent requirements – child living in Australia in care of adoptive parents for most of his life, and considers them his parents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 57, 65
Migration Regulations, Schedule 2, cls 802.212(1), 802.213(1)(b), (5)(b), (c)
CASES
Anani v MIMAC [2013] FCCA 1140
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 5 April 2023 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 20 July 2018, the applicant, who is a national of India, applied for the visa. At the time of application for the visa, he was [Age] years of age and at the time of this decision, he is [Age] years of age.
At the time the applicant applied for the visa, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The criteria to be met in this case include cl 802.213, which is a time of application criterion. The text of this provision is included as an attachment to these reasons.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate was satisfied that the applicant met cl 802.213(1)(a) stating, ‘the applicant was adopted by an Australian citizen and a holder of a permanent visa and was under the age of 18 at the time of the adoption’. The delegate then considered whether cl 802.213(1)(b) was met. This is not a case where the…

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 2305171 (Migration)

Details

AGLC: 2305171 (Migration) [2023] AATA 3237
Case: [2023] AATA 3237
Decision Date: 25 July 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant was an adopted child, and the central dispute revolved around whether the adoptive parents met specific residency requirements at the time of the adoption, or if compelling or compassionate circumstances warranted a waiver of those requirements.

The primary legal issues before the Tribunal were whether the applicant met the criteria under clause 802.213(5)(b) and (c) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if, at the time of the adoption, neither adoptive parent had been residing overseas for more than 12 months, and if not, whether compelling or compassionate circumstances justified not applying this requirement. Additionally, the Tribunal needed to be satisfied that the adoptive parents' overseas residence was not contrived to circumvent the visa requirements.

The Tribunal found that, based on the evidence, neither adoptive parent had been residing overseas for more than 12 months when the adoption took place in July 2016, meaning clause 802.213(5)(b)(i) was not met. However, the Tribunal accepted that the Department had not invited submissions or evidence regarding compelling or compassionate circumstances under clause 802.213(5)(b)(ii), and that the delegate's interpretation of what circumstances could be considered for a waiver was too narrow. The Tribunal also noted that the adoptive mother had remained in her home country for a year after the adoption, and that the child had lived in Australia with the adoptive parents for most of his life, considering them his parents, suggesting the residence was not contrived.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 802.213(1) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE If the Australian citizen, permanent visa holder or eligible New Zealand citizen of whom the applicant must be a dependent child under cl 802.212(1) is an adoptive parent of the applicant, the applicant must have been under 18 when the adoption took place, and must meet one of a number of alternative requirements relating to the nature and circumstances of the adoption and the status of the adoptive parent at the time of application: cl 802.213, extracted in the attachment to this decision. As has been explained, based on the evidence before the Department, the delegate was satisfied that the applicant met cl 802.213(1)(a), cl 802.213(5)(a) and cl 802.213(5)(d). The Tribunal has no reason to revisit these findings. Based on the evidence before it, the Tribunal is satisfied that these criteria are met. Accordingly, in this review, the issue for determination is whether the applicant meets cl 802.213(5)(b) and (c). If the applicant meets these criteria, he 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. When the adoption took place, had the adoptive parent been residing overseas for more than 12 months? (cl 802.213(5)(b)(i)) As the delegate noted, previously, the Tribunal found that the adoption took place [in] July 2016, when the adoption deed was signed. The Tribunal has reviewed [the adoptive parents’] movement records which are on the Tribunal’s file. Based on this evidence, the Tribunal finds that, as at [July] 2016, neither adoptive parent had been residing overseas for more than 12 months. Moreover, the Tribunal notes that it was conceded, in the written submissions of 14 February 2023 which are on the Department’s file, that the adoptive parent did not meet this requirement. In the circumstances, cl 802.213(5)(b)(i) is not met. 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)) At the hearing, the representative was critical of the Department for not having referred to the existence of cl 802.213(5)(b)(ii) in its s 57 letter. The Tribunal has reviewed the s 57 letter that was sent on 14 December 2022. This letter invited comment in respect of the Department’s records evidencing that, at the time the adoption took place, neither adoptive parent had been residing overseas for more than 12 months. Based on the evidence, the Tribunal accepts the representative’s submission that the Department did not invite submissions or evidence about any compelling or compassionate circumstances. The representative was also critical of the delegate’s statement in the refusal decision that, ‘[o]nly the circumstances relating to why the sponsor or his partner could not reside overseas for this 12-month period can be considered for the waiver’. The representative said that he had not been able to find anything in the law or policy to support this position.

Decision

Reasons for decision

Given the findings above, cl 802.213(1) is met in its entirety and the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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. Justine ClarkeMemberATTACHMENT – RELEVANT LAWMigration Regulations 1994Schedule 2, Part 802…802.213(1) If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:(a)was under 18 when the adoption took place; and(b)meets the requirements of subclause (2), (3), (4) or (5).(2)The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.(3)The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.(4)The applicant meets the requirements of this subclause if:(a)the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and(b)before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent's spouse or de facto partner as suitable adoptive parents, for the applicant.(5)The applicant meets the requirements of this subclause if:(a)the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and(b)either:(i)when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or(ii)the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and(c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and(d)the adoptive parent has, or the adoptive parent and the adoptive parent's spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.

Ratio Decidendi

Legal Principle Established

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