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…

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 2430899 (Migration)

Details

AGLC: 2430899 (Migration) [2024] ARTA 585
Case: [2024] ARTA 585
Decision Date: 13 December 2024

CaseChat Overview and Summary

The case of 2430899 involved an application for a Child (Residence) (Class BT) visa under subclass 802, concerning a child who had been formally adopted by an Australian citizen or permanent visa holder. The primary dispute centred around whether the applicant met the requirements of the visa criteria, particularly concerning the adoptive parent's residence overseas for 12 months prior to the adoption. The Federal Circuit and Family Court of Australia was tasked with reviewing the decision made by the Department of Home Affairs.

The legal issues before the court were whether the applicant met the criteria outlined in clause 802.213(5) of the Migration Regulations, specifically focusing on whether compelling or compassionate circumstances justified a waiver of the 12-month overseas residence requirement for the adoptive parent. Additionally, the court had to determine whether the decision-making process was appropriate and whether a hearing was necessary.

The court found that the delegate's interpretation of the waiver provision was too narrow, as it was not limited to the reasons why the adoptive parents could not reside overseas or the timing of the application. The court concluded that the policy did not support the delegate's interpretation and that the waiver provision was meant to cover a broader range of circumstances. The Tribunal found that the decision-making process could have been improved with more comprehensive consideration of the evidence and submissions provided. Given the complexity of the case and the compelling circumstances presented, the court determined that a hearing was not necessary for this review.

The court ultimately decided to set aside the decision under review and remit the matter for reconsideration, finding that the applicant met the criteria for a Subclass 802 visa. The court urged the Department of Home Affairs to expedite the case due to the applicant's immediate need to attend school.

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 is set aside, and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEAdoption 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.

Decision

Reasons for decision

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 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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