2430899 (Migration) - [2024] ARTA 585

2430899 (MIGRATION) [2024] ARTA 585 (13 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2430899

Tribunal:General Member J Clarke
Place:Melbourne
Date: 13 December 2024
Decision:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, in accordance with the order 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 13 December 2024 at 3:26pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – niece now formally adopted – neither adoptive parent residing overseas for 12 months at time of adoption – compelling or compassionate circumstances not limited to why adoptive parents could not reside overseas, or to time of application – further information and evidence, and extensive submissions – previous significant periods of residence in home country, returning to Australia during COVID pandemic – previous guardianship rights and misconception about law delayed adoption application – delay in and expense of schooling as international students rather than visa holders – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 348A(1)
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(i)
Migration Regulations 1994 (Cth), Schedule 2, cl 802.213(5)(b)
CASES
Anani v MIMAC [2013] FCCA 1140
Boakye-Danquah v MIMIA (2002) 116 FCR 557
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 22 August 2024 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 21 June 2024, the visa applicant, who is a national of Indonesia, applied for the visa. At the time she applied for the visa, the applicant was [Age] years of age and at the time of this decision, she is [Age] years of age.
At the time of application, 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). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), 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 noted that an Indonesian court decree issued by the [District Court] [in] June 2024 ‘stated that [the adoptive father] and [the adoptive mother] adopted [the applicant], the child of [the adoptive mother]’s sister [Ms A]’. The delegate appeared to be satisfied that an adoption had taken place in Indonesia. The delegate also appeared to be satisfied that the applicant met cl 802.213(1)(a) stating ‘the applicant appears to be adopted by an Australian citizen and the holder of a permanent visa, and was under the age of 18 at the time of the adoption’.
The delegate 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. Although not expressly stated, the delegate appeared to be satisfied that the applicant met cl 802.213(5)(a). However, the delegate was not satisfied that cl 802.213(5)(b) was met.
Paragraph cl 802.213(5)(b) provides:
(5) The applicant meets the requirements of this subclause if:
…
(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[.]
The delegate found that subclause (5)(b)(i) was not met because neither adoptive parent had been residing overseas for more than 12 months prior to the adoption. The delegate stated that, in the 12 months prior to the adoption (12 June 2023 to 12 June 2024), the adoptive parents had spent only 74 days outside Australia.
The delegate continued:
These requirements are in place to ensure that Australia meets its obligations under the Hague Adoption Convention, which includes that the best interests of the child are protected. The overall aim of this provision is to cater for adoptions that take place when the Australian adoptive parents are living abroad long term, for genuine reasons of employment or business but not solely or principally to meet this criterion and avoid the need for approval by Australian welfare authorities.
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 policy intention is that only circumstances relating to why the adoptive parent could not reside overseas for this 12-month period can be considered for the waiver. No other factors surrounding the adoption or current circumstances 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.
… The only relevant information in the response was that the adoptive father had to return to Australia from Indonesia in order to access their aged pension. A bank statement indicated that they received said pension. No information was provided regarding why the adoptive mother was not overseas.
I have considered the presented claim, but I do not deem the need to return to Australia to access a pension as compelling or compassionate circumstances for why the adoptive father was not residing overseas at adoption. It is not a situation unique to the father, and it appeared to be a personal choice to return to Australia. In addition, the court decree for adoption mentioned ‘That around July 2023 the Petitioners moved to Australia,’ suggesting that their perceived home was not overseas at that point. Furthermore, provided evidence (eg payslips), indicated that the adoptive mother was employed in Australia during that time, which represents a strong tie to Australia. Therefore, I am of the opinion that the adoptive parents were residing in Australia during the 12 months before adoption.
Based on the information before me, I am not satisfied that the adoptive parents have compelling or compassionate reasons for not residing overseas for more than 12 months prior to the adoption taking place. Therefore, I assess that the applicant does not meet the ‘waiver provision’ as mentioned in subparagraph 802.213(5)(b)(ii). As a result, paragraph 802.213(5)(b) is not met.
On 30 August 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for the review of the delegate’s refusal decision.
On 13 October 2024, the AAT was abolished. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), an application for review to the AAT that was not finalised before 14 October 2024 is taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Section 348A(1) of the Act provides, ‘[t]he Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act’. ART Act is defined in s 5(1) as meaning the Administrative Review Tribunal Act 2024 (Cth).
On 19 October 2024, the applicant’s adoptive father requested priority processing of the case on behalf of the applicant.
Subsequently, the Tribunal assigned priority to the case, but it appears that this was not communicated in writing to the applicant.
The Tribunal notes that further information and evidence was submitted to the Tribunal than what had been before the delegate, including written submissions prepared by Kings Counsel[1] on 25 September 2024 and photographs of the applicant with her adoptive parents over the years. Having reviewed and considered all the material before it, the Tribunal considers that, pursuant to s 106(3)(b)(i) of the ART Act, a hearing is not required in this review and that the Tribunal should decide the review in the applicant’s favour based on the material before it.
[1] Georgina Costello KC.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Adoption criteria
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.
As has been explained, based on the evidence before the Department, the delegate appears to have been satisfied that the applicant met cl 802.213(1)(a) and cl 802.213(5)(a). 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)(ii), (c) and (d).[2] If the applicant meets these criteria, she 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.
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))
[2] The Tribunal notes that it was submitted that the delegate had been satisfied as to cl 802.213(5)(c) and (d).
The Tribunal notes that the delegate’s statement in the primary decision that, ‘[t]he policy intention is that only circumstances relating to why the adoptive parent could not reside overseas for this 12-month period can be considered for the waiver. No other factors surrounding the adoption or current circumstances can be considered’ appears to confine the ‘waiver provision’ to only the grounds of compelling or compassionate circumstances that caused the adoptive parents not to be able to reside offshore for 12 months or more prior to the adoption. However, the Tribunal has not been able to find anything in the law or policy to support this position.
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.
The Tribunal has also reviewed the Department’s policy. 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.
Accordingly, the Tribunal finds that there is nothing in the law or the Department’s policy to support the validity of the delegate’s statement extracted above. Given these findings, the Tribunal considers that ‘compelling or compassionate circumstances’ are not to be limited in the way the delegate contended.
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 the circumstances.[3] 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.
[3] Anani v MIMAC [2013] FCCA 1140 at [34].
In Waensila v MIBP[4] the Full Court of the Federal Court held that the Tribunal erred in failing to take into account events or circumstances that emerged after the date of the visa application in considering whether there were compelling reasons for not applying Schedule 3 criteria. The Court observed that the purpose of the provision is to provide greater flexibility to respond to compelling circumstances[5] and the text of the relevant provisions in cl 820.211(2)(d)(ii) do not contain any clear words that have the effect of confining that consideration to events which only existed at the time of the visa application.[6]
[4] Waensila v MIBP [2016] FCAFC 32 per Robertson J at [22] and Griffiths J at [59], overruling the Federal Court decision in Boakye-Danquah v MIMIA (2002) 116 FCR 557 which held that ‘compelling reasons’ was limited to those arising out of the circumstances as at the time of visa application.
[5] Waensila v MIBP [2016] FCAFC 32 at [2], [18], [56].
[6] Waensila v MIBP [2016] FCAFC 32 at [2], [16], [58].
The Tribunal can see no reason why the principle in Waensila could not extend to the relevant provisions in cl 802.213(5)(b)(ii)—a time of application criterion where, arguably, the purpose of the provision is to provide greater flexibility to respond to compelling or compassionate circumstances. For this reason, the Tribunal has also considered compelling or compassionate circumstances that exist at the time of this decision.
The fulsome written submissions, which were five and half pages in length, listed 12 compassionate and compelling circumstances why cl 802.213(5)(b)(i) should not apply to the applicant. The Tribunal will not restate them all here. However, the Tribunal notes that it accepts and felt particularly moved by the following circumstances.
(a) [The adoptive father] and [the adoptive mother] did not reside in Indonesia for a 12-month period immediately prior to the adoption, but had genuinely resided together in Indonesia for several years before that time—[the adoptive mother] is an Indonesian national.
(b)
The reason that [the adoptive parents] moved to Australia from Indonesia in 2023 was because their business failed in the context of the COVID pandemic and they needed to access [the adoptive father]’s government pension here and live in free accommodation owned by [the adoptive father]’s family in rural Victoria.

…
(d) It was appropriate for the formal adoption to take place in Indonesia, where [the applicant and her brother] are citizens and where the Court in [City] had already granted guardianship rights to [the adoptive parents] for the children in 2019.
(e) Had [the adoptive parents] not held the earlier misconception that they were unable to formally adopt [the applicant and her brother] because of [the adoptive father]’s age, then they would have done it years earlier, while living in Indonesia.
(f) [The applicant and her brother] yearn to attend school in Australia but their current visa status means they are classed as international students, and school fees cost upwards of $22,600 per annum to attend school, which is beyond the means of [the adoptive father or mother]. Any delay in the grant of the Visa to these two children is delaying their physical attendance at Australian schools and causing stress to [the adoptive parents, the applicant and her brother].
(g) [The applicant and her brother] are unable to attend school in person at their local school until payment is made and they are not socialising with other children their age in their neighbourhood and are therefore disadvantaged.
(h) The consequence of refusing the Visa would be a visa ban under s 48 of the Migration Act 1958.
As has been noted, having reviewed all the evidence, including evidence on the Department’s file, the Tribunal did not consider a hearing to be necessary. This is because, having reflected upon the submissions and all the evidence before the Tribunal, the Tribunal feels forced or driven irresistibly (to use the words of Plaintiff M64/2015 v MIBP [2015] HCA 50) to decide in the applicant’s favour and has ‘feelings of sympathy, sorrow, pity or concern for others’ (to use the language of the dictionary meaning of ‘compassionate’). The Tribunal finds that this is the ‘rare case’ (to use the language of the Department’s policy) 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))
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.
The Tribunal notes that it was submitted:
[The applicant, her brother and the adoptive parents] had lived in Indonesia where [the adoptive parents] were formally recognised as the guardians of [the applicant and her brother] five years ago and formally adopted in 2024. There is no contrivance to reside in Indonesia; that is where the family lived for significant periods of time. The fact the family has lived in Australia and not Indonesia in 2023 and 2024—in the 12 month period relevant to this visa application—is because the family was forced by financial circumstances to move here.
The Tribunal accepts the submission.
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.
At the time of application for the visa on 21 June 2024, had the adoptive parent, or the adoptive parent and the adoptive parent’s spouse or de facto partner, lawfully acquired full and permanent parental rights by the adoption? (cl 802.213(5)(d))
It appears to the Tribunal that, if required, the Indonesian court decree issued by the [District Court] could be enforced against the biological parents. In view of all the evidence before the Tribunal, the Tribunal finds that the adoptive parents lawfully acquired full and permanent parental rights by the adoption in Indonesia. The Tribunal is satisfied that cl 802.213(5)(d) is met.
CONCLUSION

Given the findings above, all the limbs of cl 802.213(5) are met and so it follows that cl 802.213(1) is met in its entirety. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
Any efforts the Department of Home Affairs may make in expediting this case would be appreciated. This is because this case concerns a child who wishes to attend her local school but for whom the international student fees are beyond the financial means of her family such that she cannot attend that school. Her adoptive father stated, in his email to the Tribunal of 19 October 2024, that the applicant needs to travel interstate (two and half hours travelling each way, every school day) as the NSW Government has offered her free tuition in that state.
DECISION
The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 802 visa:
cl 802.213(1) of Schedule 2 to the Regulations.
Date(s) of hearing:
Representative for the Applicant:
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.