2306118 (Migration)

[2024] AATA 541

2306118 (Migration) [2024] AATA 541 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2306118

MEMBER:Maxina Martellotta

DATE:1 February 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 102 (Adoption) visa:

·cl. 102.211 of Schedule 2 to the Regulations.

Statement made on 01 February 2024 at 10:33am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) visa – adoption of the visa applicant by sponsor is recognised and validated by the Court – sponsor had been residing overseas for more than 12 months – adoptive parent has lawfully acquired full and permanent parental rights by adoption – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 338, 347

Migration Regulations 1994, r 1.04, Schedule 2, cl 102.211

CASES

Nguyet Huong Phung v MIEA [1997] FCA 373

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 by a delegate of the Minister for Home Affairs on 13 April 2023 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. The visa applicant applied for the visa on 7 June 2022. The delegate refused to grant the visa on the basis that cl 102.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the

   
   

   Regulations) was not met because the delegate was not satisfied the 12 months overseas residence requirement was met.

3. In this case the visa applicant has standing to seek review pursuant to s 347(2)(a) of the Act and the refusal decision is reviewable pursuant to s 338(7A) of the Act.[1]

   [1] The application was lodged whilst the visa applicant was offshore. The visa applicant was onshore at the date of the delegate’s decision and at the date of lodgement of the application for review

4. The visa applicant appeared before the Tribunal on 9 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his sponsor and adoptive father, [Mr A], who also acted as his son’s representative. The visa applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal also considered materials provided by the visa applicant to the Department and to the Tribunal.

5. For the following reasons, the Tribunal has concluded that the decision under review be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained three subclasses: Subclass 101 (Child); Subclass 102 (Adoption) and Subclass 117 (Orphan Relative) – Item 1108 of Schedule 1 to the Regulations. The visa applicant sought to be assessed against the Subclass 102 (Adoption) visa.

7. In order to be granted a Subclass 102 (Adoption) visa, the visa applicant must satisfy the criteria set out in Schedule 2 to the Regulations. One of the issues in question in this case is cl 102.211 which is set out below:

   (1)The applicant meets the requirements of subclause (2), (3), (4) or (5).

   (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.

8. According to the Form 47CH the visa applicant was born in [year] which means at the time of the visa application he was [age] years of age. The Form 40CH Sponsorship for a child to migrate to Australia completed by [Mr A] declared that he adopted the visa applicant after he had become an Australian citizen.  Department records confirm that he acquired Australian citizenship by grant [in] March 1993.

9. [Mr A] also declared that at the time of the application his current residential address to be an apartment in [Country 1].  That form further declares that he had resided in [Country 1] from April 2010 to November 2021 and had resided in Australia from November 2021 to May 2022 and since May 2022 he was residing in [Country 1].

10. A copy of an adoption order made in [a] Family Court was included in the materials. That order dated 13 October 2016 declares that the adoption of the visa applicant by [Mr A] is recognised and validated by the Court of [Country 2].

11. At hearing [Mr A] confirmed that this was not a case in which his adoption of the visa applicant was one which involved a competent authority in Australia approving the prospective adoptive parent or allocated the visa applicant for prospective adoption. He asserts that this was an expatriate adoption.

12. The Tribunal concluded that the requirements of cl 102.211(3) and (4) are not met. It was also confirmed at hearing and there is no evidence that the visa applicant has been adopted in accordance with the Adoption Convention and the Tribunal has concluded that cl 102.211(5) is not met.

13. According to the delegate’s record of decision whilst they were satisfied that the adoptive father ([Mr A]) was an Australian citizen at the time of his adoption of the visa applicant, records indicated that he was in Australia at the time of the visa application being lodged and that additionally in the 12 months immediately prior to the application being lodged, the adoptive father had only spent 69 days outside of Australia and as such the requirement in cl 102.211(2)(b)(ii) was not met. Further that none of the other forms of alternative forms of adoption had application in this case.

14. The visa applicant seeks to meet cl 102.211(2). The visa applicant was born in [year] and is under the age of 18. He meets cl 102.211(2)(a). Materials in the Department file identify that the sponsor acquired his Australian citizenship prior to the adoption taking place in 2016 and this was confirmed in oral evidence. The Tribunal is satisfied that at the time of adoption, the sponsor was an Australian citizen. The visa applicant meets cl 102.211(2)(b)(i). In reaching this conclusion the Tribunal is further satisfied that the adoption in this case meets the definition of adoption in reg.1.04.

15. Clause 102.211(2)(b)(ii) requires the visa applicant to have been adopted by a person who had been residing overseas for more than 12 months at the time of the application. There is no clear authority whether this provision requires 12 months continuous residence overseas. A previous provision was considered by the Federal Court in Nguyet Huong Phung v MIEA [1997] FCA 373 (13 May 1997) (Nguyet Huong Phung). The provision in that case, reg 46(a)(ii)(A), required that the applicant be ‘a child who has not turned 18 adopted by an Australian citizen … where: the adoptive parent has been residing overseas for more than 12 months at the time of the application…’ The Federal Court in relation to that provision held that this required the 12 months or more to be prior to the time of application and it was not sufficient if the adoptive parent has had at some earlier time a period of more than 12 months overseas residence.

16. [Mr A] provided the following evidence by way of background describing his residence in [Country 1], his connections to Australia, and the circumstances in which he commenced spending increased periods of time in Australia from 2020.

17. He and his parents migrated to Australia, and he acquired Australian citizenship. He married and had two children. He and his first spouse purchased land in [Suburb 1], Western Australia in the early 2000s and built a home. He increasingly was spending time abroad due to his work and his marriage ended. He retained ownership of the [Suburb 1] property.

18. He had lived and been based in [Country 1] since 2006 and specifically lived in [Country 1] from about 2010. He established a company registered in [Country 1] and operated the business from [Country 1]. He re-partnered and married the visa applicant’s mother. He adopted the visa applicant and he and his second wife had a child. He and his family had residential rights in [Country 1].

19. He divorced from his second wife and pursuant to Court Orders made in [Country 1] (2021) he retained custody of their biological daughter. No orders were made with respect to the visa applicant. Both children remained in his care.  He and the children continued to live in [Country 1]. The children attended school in [Country 1]. He rented accommodation and maintained [Country 1] bank accounts and as noted his company and business were registered in [Country 1].

20. Since living in [Country 1], he has maintained a connection with Australia.  He travelled back on a regular basis to spend time with his parents, his adult children (from his first marriage) and grandchildren whom all live in Australia.  When in Australia he would generally stay in the [Suburb 1] property. He retained a bank account with nominal funds and a car in Australia.

21. He is an only child. His father passed away in 2017 and in early 2019 his mother became unwell. Her health deteriorated such that he commenced spending extended periods of time in Australia to care for her. Consistent with his travel records from 2019 he was travelling to Australia on a monthly basis. Over that year the amount of time he remained in Australia increased from days, to weeks at a time. From 2020, however, the time he remained in Australia extended to months.

22. He agrees that in the 12 months prior to the application being lodged he spent the majority of his time in Australia, however this was in effect due to his mother’s state of health.  This period also coincided with the COVID-19 pandemic and from March 2020 the international travel restrictions meant his ability to regularly commute between Australia and [Country 1] were impacted. In his opinion he had to choose to stay with his mother rather than risk returning to [Country 1] and not being able to return.

23. From January 2020 he stayed in the [Suburb 1] property, he would take his mother to and from her medical appointments and generally provide her with support. At the same time however, he was working for a [Country 1] based business. His employment income continued to be paid into his [Country 1] bank accounts.  He continued to maintain a residence in [Country 1], his children were still living and attending school in [Country 1]. The sponsor explained that the situation was far from ideal, he was in regular contact with the children who were being cared for by nannies.

24. He returned to [Country 1] in September 2021 as this coincided with the end of the [Country 1] school year. He did not attempt to return to [Country 1] before September 2021, because of the quarantine restrictions, the cost of getting a flight, availability of seats and his mother’s increasing ill health and care needs meant that there was no one else to take care of her as he was her primary carer.

25. When he returned to [Country 1], it was difficult to secure tickets and this delayed his and the children’s flights to Australia, until November 2021. His intention on returning to Australia was for himself and the children to spend what time was left with his mother and their grandmother.  At that point he still had plans to return to [Country 1] to resume work and residence there after his mother passed away. He remained in Australia until May 2022 and then he returned to [Country 1] with the children for work. At this point he needed to make some final decisions about whether to re-engage with work opportunities in [Country 1]. Ultimately, he decided that due to the impact of COVID-19 upon his business interests, continuing to be based in [Country 1] ceased to be a viable financial option. He decided going forward it would be better to relocate to Australia and he initiated the visa application for his adopted son. He has now secured employment and is wanting to stay in Australia with him and the children.

26. The Tribunal asked the sponsor about his connections to Australia. He stated that he had retained connections with this country and that whilst resident in [Country 1] he always through that he would eventually retire in Australia, however he considered himself as a resident of [Country 1] due to his longstanding business and work connections and it was the place where he lived with his former partner, it was the place his children from that marriage have been raised.  If not for his mother’s illness and then the subsequent impact of COVID-19 he would have continued to have lived and work in [Country 1].

27. The Tribunal noted evidence of the sponsor’s travel records. He confirmed he was in Australia for the following periods including the 12 months prior to the visa application lodged on 9 June 2022:

    • 11 November 2019 – 6 January 2020
    • 27 January 2020 – 10 September 2021
    • 5 November 2021 − 23 May 2022
    • 12 July 2022 – 15 September 2022

28. The Tribunal must determine whether the sponsor had been residing overseas for more than 12 months before the application was made.

29. The Tribunal has had regard to the duration of [Mr A]’s trips to Australia, the purpose of the trips and where he had established his residence (being mindful that it is possible to have residence in more than one country).

30. In this case the Tribunal makes the following findings of fact regarding [Mr A]:

    a)He is an Australian citizen by grant.

    b)Since 2006 he has spent extended periods living and working in [Country 1].

    c)He would travel back to Australia to visit family. He retained ownership of a home and a car in Australia and a nominal bank account.

    d)He had business interests in [Country 1] and he lived in a rental property with his former spouse and their two children in [Country 1] where he had rights of residency associated with his business interest. He continued to live in [Country 1] with his children following the separation from his second wife.

    e)His company and business interests were registered in [Country 1] and he operated a [Country 1] bank accounts.

    f)From 2019 he regularly commuted to Australia to spend time to care for his elderly mother.

    g)From 2020 he spent extended periods of time in Australia including the following:

    ·11 November 2019 – 6 January 2020

    ·27 January 2020 – 10 September 2021

    ·5 November 2021 − 23 May 2022

    ·12 July 2022 – 15 September 2022

    h)During the above periods, his children continued to live and attend school in [Country 1] and he was working for a [Country 1] based company.

    i)The main purpose of his time in Australia from January 2020 was to provide care to his elderly mother for whom he was the primary caregiver during her terminal illness. His ability to return to [Country 1] in that period was also impacted by COVID-19 quarantine and travel restrictions.

    j)It was his intention to return to [City 1] to resume his residence and business in [Country 1] after his mother passed away.

31. The relevant criterion that is to be satisfied, is that [Mr A] had been residing overseas for more than 12 months at the time of the application. Travel to Australia during the relevant period is not necessarily inconsistent with a period of residence overseas, if it can be said that the person nevertheless continues to reside overseas. In this regard, the concept of ‘residence’ has received considerable attention in common law, usually in the context of taxation or social security legislation.

32. In Hafza v Director General of Social Security[2] Justice Wilcox held that the concept of residence includes two elements: ‘physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever’. His Honour then extracted the statement from Koitaki’s[3] case and went on to make the following observations:

    Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily (see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains ‘home’ (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place… and secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as ‘home’, a change of intention may be decisive of the question whether residence in a particular place has been maintained[4]

    [2] [1985] 6 FCR 444; [1985] FCA 16.

    [3] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (Koitaki's case) (1941) 64 CLR 241.

    [4] Ibid [449-450].

33. On the particular facts of this case, whilst [Mr A] physical presence in Australia increased leading up to the application, his retained a significant connection and continuity of association with [Country 1] which is the place he had been working and living consistently from 2006. As noted in the period leading to the application he was in Australia only because he was caring for his mother, he was unable to predict with certainty how her illness would progress, he  otherwise retained a residence in [Country 1], his children continued to attend school and live in [Country 1], he was working for a [Country 1] employer, his finances were transacted through a [Country 1] bank account and it was always his intention to resume his physical residence in that place  once his mother passed away. His physical absence from [Country 1] did not mean he necessarily ceased to be resident there particularly given the continuity of his connection and interests in that place.

34. The Tribunal for these reasons is satisfied and finds that [Mr A] had been residing overseas for more than 12 months and the Tribunal concludes that the requirement in cl 102.221(2)(b)(ii) is satisfied.

35. The Tribunal is further satisfied on the facts that [Mr A]’s residence overseas was not contrived to circumvent the requirements for entry to Australia of children for adoption. adoption occurred in the context of a previous marriage relationship when the adoptive parent was living and working in [Country 1] and had been doing so for some years. The Tribunal is satisfied that the requirement in cl 102.221(2)(c) is satisfied.

36. The Tribunal is also satisfied on the facts that the adoptive parent has lawfully acquired full and permanent parental rights by adoption. The requirements of cl.102.211(2)(d) are also met.

    Conclusion

37. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl 102.211.

    DECISION

38. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 102(Adoption) visa:

    ·Cl.102.211 of Schedule 2 to the Regulation.

    Maxina Martellotta

    Member