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

1. 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).

2. 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.

3. 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).

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). 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 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 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 by an Australian citizen (the adoptive father) and Australian permanent resident (the adoptive mother)’. The delegate was also satisfied that the applicant met paragraph cl 802.213(5)(d) stating, ‘the adoptive parents lawfully acquired full and permanent parental rights by the adoption’. However, the delegate was not satisfied that paragraph cl 802.213(5)(b) was met.

6. Paragraph cl 802.213(5)(b) provides:

   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 noted that the adoption deed was signed [in] July 2016 and noted that the Tribunal had accepted this as the date of adoption. The delegate noted that movement records held by the Department show that, in the 12-month period prior to the adoption, the adoptive parents had spent 15 days outside of Australia. Accordingly, the delegate found that cl 802.213(5)(b)(i) was not met as, prior to the adoption, neither adoptive parent was residing overseas for more than 12 months.

8. The delegate continued by stating:

   The 802.213(5)(b)(ii) ‘waiver provision’ acknowledges that, given the complexity of situations that can arise with regard to adopted children, exceptional cases may arise where a person usually resident in Australia adopts a child overseas in circumstances that fall outside the provisions of visa 102 (the offshore equivalent of an 802 visa lodged in Australia). The waiver provision is based on the grounds of compelling or compassionate circumstances.

   The applicant has applied for a waiver of the requirement for an adoptive parent to have been residing overseas for the 12 months prior to the adoption because of compelling or compassionate circumstances. Only 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. No other factors surrounding the adoption can be considered.

   Although ‘best interests of a child’ is of primary consideration in the context of Australia’s international obligations relating to minor children, it is not the only consideration and it cannot override other legal requirements that must be met for the grant of this visa.   

9. The delegate assessed the various claims which had been made but concluded that neither adoptive parent had compelling or compassionate reasons for not residing overseas for more than 12 months prior to the adoption taking place. Therefore, the delegate considered that the applicant did not meet the ‘waiver provision’ in cl 802.213(5)(b)(ii).

10. Accordingly, the delegate refused to grant the applicant the visa on the basis that cl 802.213 was not met because cl 802.213(5)(b) was not met.

11. On 12 April 2023, the applicant applied to the Tribunal for the review of the delegate’s refusal decision. The applicant was represented in relation to the review.

12. On 9 May 2023, [the applicant’s adoptive mother] requested priority processing of the case on behalf of the applicant.

13. On 8 June 2023, the Tribunal decided to grant priority to the processing of the review.

14. On 21 June 2023, the matter was constituted to the presiding Member. The Tribunal notes that, the Tribunal as presently constituted, also heard and decided the review of the applicant’s previous application to the Tribunal regarding a delegate’s earlier refusal decision, where the delegate found that the applicant did not meet cl 802.212 (AAT reference number 1932045). The Tribunal confirms that it heard and decided each matter on its merits.

15. On 25 July 2023, [the applicant’s adoptive parents] appeared, in person, before the Tribunal on behalf of the applicant to give evidence and present arguments. The representative also attended the hearing in person. An interpreter in the Punjabi and English languages also attended the Tribunal hearing. The interpreter attended the hearing by video from a different location.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. 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.

19. 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))

20. 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.

21. 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.

22. 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))

23. 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.

24. 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.

25. 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.

26. 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 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’.

27. The Tribunal has also reviewed the Department’s Procedures Advice Manual (PAM3). 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.

28. Based on the evidence, the Tribunal accepts the representative’s submission 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 partner 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.

29. 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 of 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].

30. The representative made written submissions about compelling or compassionate circumstances in the written submissions of 14 February 2023, which are on the Department’s file. As the representative noted at the hearing, the delegate systematically found that each of the claimed compelling or compassionate circumstances was neither a compelling circumstance or a compassionate circumstance.

31. In addition, in this review, the representative submitted written submissions dated 18 July 2023. These submissions use three headings: ‘list of compassionate circumstances’; ‘Australia’s obligations under the Convention [on the Rights of the Child]’ and ‘Impact on [the applicant]’.

32. While both [the adoptive parents] attended the hearing, the Tribunal could see how distraught and sad they appeared to be and wanted to avoid traumatising them by asking them to reiterate claims already made. The Tribunal offered each the opportunity to say anything further that they wished to say but they elected did not to give oral evidence. As the representative explained, they were both in ‘quite a state’. The Tribunal witnessed [the adoptive mother] shed tears throughout the hearing.

33. Prior to the conclusion of the hearing, the representative referred to the best interests of the child, noting that the applicant has been in the care of his adoptive parents since he was a baby; has been residing in Australia for most of his life; is unaware that he is adopted and that he considers his birth parents, who live in India, as his uncle and aunt. In the representative’s words, if these circumstances were not compelling or compassionate, he queried what would be. (The Tribunal notes that similar submissions were made in the written submissions of 14 February 2023 and 18 July 2023—although both documents also make many other submissions). Unlike the delegate, the Tribunal finds these circumstances to be both compelling and compassionate.

34. Having reflected upon all the evidence before the Tribunal, the Tribunal finds that this is the ‘rare case’—to use the language of PAM3—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))

35. 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. Notwithstanding, the Tribunal is satisfied that [the adoptive mother]’s residence overseas (from [June] 2016 to [October] 2017) and [the adoptive father]’s residence overseas (from [June] 2016 to [July] 2016) was not contrived to circumvent the requirements for entry to Australia of children for adoption but rather so that they could ‘take the responsibility of the adoptive child’.[2] In addition, the Tribunal notes and accepts the written submission of 18 July 2023 that [the adoptive mother] had stayed in India for almost a year in order to be and bond with the applicant and that this ‘showcased a deep commitment to their parent-child relationship’. The Tribunal finds that [the adoptive mother]’s extended stay was to ensure that she could provide appropriate parental care to the applicant.

    [2] Written submissions of 14 February 2023.

36. 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.

    CONCLUSION

37. 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

38. 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.