Akhter (Migration)

[2019] AATA 5365

Akhter (Migration) [2019] AATA 5365 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ferdousy Akhter

VISA APPLICANT:  Ms Fatema Maisarah Siddiqui

CASE NUMBER:  1807191

HOME AFFAIRS REFERENCE(S):         2017053356, OSF2017/053356

MEMBER:Helena Claringbold

DATE:12 November 2019

PLACE OF DECISION:  Sydney

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(2) of Schedule 2 to the Regulations.

Statement made on 12 November 2019 at 10:33am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – overseas residence requirement – lawfully acquisition of full and permanent parental rights – requirements of obtaining legal guardianship in Bangladesh – arrangements made in accordance with the usual practice – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.04; Schedule 2, cl 102.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 1 November 2017, Miss Fatema Maisarah Siddiqi (the visa applicant) applied for a Child (Class AH) (Adoption) visa Subclass 102 visa. The application was based on the visa applicant’s relationship with, Ms Ferdousy Akhter, the sponsor and review applicant.

2. On 10 January 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met subclauses 102.211(2), (3), (4), or (5) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). The sponsor provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision brought by the sponsor.

3. On 23 October 2019, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The sponsor was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this case is whether, at the relevant time, the visa applicant is the adoptive daughter of the sponsor and therefore satisfies subclauses 102.211(2), (3), (4), or (5) of Schedule 2 to the Regulations.

   BACKGROUND ON THE EVIDENCE

7. The sponsor was born in 1969 in Bangladesh. She entered Australia in 2008. She became an Australian citizen by grant on 11 June 2013. Her husband was born in 1958.  He entered Australia in 1981. He became an Australian citizen by grant on 9 March 1998. The visa applicant was born in 2016 in Bangladesh.

8. The sponsor and her husband told the Tribunal the following: they were unable to have children. They undertook several IVF treatments without success. As a result of their circumstances the sponsor became unwell and spent some time in hospital.  In 2014, after her treatment she studied at TAFE and was granted a Certificate III in Child Care.  Following her qualification she ran a child care service from her home.  In 2016, when the sponsor travelled to Bangladesh she was told of a family who had a daughter they could care for. She felt sadness and called her husband stating that she wanted to adopt the child. The sponsor’s husband told the Tribunal that he was taken back when he received the telephone call but could not refuse his wife’s request. The sponsor has cared for the visa applicant since the day of her birth. The sponsor and her husband have lived apart for three and a half years with the sponsor’s husband visiting the sponsor and the visa applicant every year and financially supporting them.

9. Third party statements attest to the good character of the sponsor and her husband and to the difficulties they have experienced during separation.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). The issue in question in this case is cl 102.211 which is relevantly 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.

    Is the visa applicant under 18?

11. The visa applicant was born on 10 January 2016. On the basis of the visa applicant’s birth certificate the Tribunal is satisfied that the visa applicant was under 18 at the time of application. Therefore the visa applicant meets cl.102.211(2)(a) of Schedule 2 to the Migration Regulations.

    Is the sponsor a relevant person?

12. The Tribunal is satisfied on the basis of the sponsor’s movement records that she was granted Australian citizenship on 11 June 2013. The Legal Guardianship Order dated 8 March 2017 of the Family Court Bangladesh appoints the sponsor and her husband as the adoptive parents of the visa applicant. The Tribunal is satisfied that the visa applicant was adopted overseas by a person who was an Australian citizen at the time of adoption. Therefore, the visa applicant meets cl.102.211(2)(b)(i) of Schedule 2 to the Regulations.

    Did the sponsor reside outside of Australia?

13. The sponsor told the Tribunal that she departed Australia on 10 January 2016 and has lived in Bangladesh since that time. The sponsor’s Departmental movement records substantiate that she departed Australia on 10 January 2016 and as at 16 October 2019 had not entered Australia. The sponsor was granted Australian citizenship on 11 June 2013. The Tribunal is satisfied that at the time of application (1 November 2017), the sponsor had been residing overseas for more than 12 months at the time of application. Therefore cl.102.211(2)(b)(ii) of Schedule 2 to the Regulations is met.

    Was the sponsor’s overseas residence contrived?

14. The Tribunal accepts the evidence given by the sponsor about the circumstances leading her to remain in Bangladesh. The Tribunal accepts the sponsor remained in Bangladesh to provide care to the visa applicant and that the purpose was not contrived to circumvent the requirements to entry to Australia of children for adoption. Therefore cl.102.211(2)(c) of Schedule 2 to the Regulations is met.

15. The Tribunal went onto consider whether the sponsor and her husband lawfully acquired full and permanent parental rights by the adoption.

16. The Tribunal considered the United Nations Committee on the Rights of the Child: Consideration of Reports Submitted by States Parties – Bangladesh’, 2003 states at pp. 30-31 that:

    136. Since the repeal of the Bangladesh Abandoned Children (Special Provisions) Order 1972 in 1982 there is no civil law governing adoption, although individuals can apply for guardianship of either the person or the property of a child under the Guardians and Wards Act 1890.

    Also the ‘Third and Fourth Periodic Report of the Government of Bangladesh Under the Convention on the Rights of the Child’, August, p. 49 similarly states that: no civil law regarding adoption exists,, .....[p]ersons, who cannot adopt, may take a child under his or her guardianship as per the Guardians and Wards Act, 1890. Only a citizen of Bangladesh can be declared a guardian of a Bangladeshi “minor”

17. Information received from the Department of Foreign Affairs and Trade outlines the requirements of acquiring legal guardianship of a child where the child’s natural parents are alive and they give consent to the adoption. Bangladesh law does permit its own citizens to apply for guardianship of children under the purview of the Guardianship and Wards Act.

18. The requirements of obtaining legal guardianship are as follows:

    i) Biological parent must sign an irrevocable release of the child before a Notary Public or local Magistrate in Bangladesh
    ii) An application for legal guardianship must be made to the Family Court. In Bangladesh the Family Court has sole jurisdiction over family matters. The Bangladesh government does not approve adoption agencies or attorneys.
    iii) A ‘No Objection Certificate’ must be obtained from the Bangladesh Ministry of Home Affairs.
    iv) The ‘No Objection Certificate’ and ‘legal guardianship’ documents should be presented to the Bangladesh Passport Office for the child’s passport. Prospective adopting parents should be listed as the legal guardians in the child’s passport.

    v) Prospective adoptive parents must be at least 18 years old and provide proof of Bangladeshi citizenship. There is no age limit for the children being adopted– Bangladesh: Bangladeshi Adoption Laws, (sourced from DFAT advice of 31 May 2007.

19. The sponsor provided information relating to the visa application including the following:

    ·Birth certificate issued by the ‘People’s Republic of Bangladesh, Office of the Registrar of Birth and Death’, dated 7 June 2017.  This records the sponsor and her husband as the mother and father of the visa applicant.

    ·Affidavit signed by the visa applicant’s biological parents in the court of the Senior Judicial Magistrate, before MD Kmal Uddin, Advocate, Judge Court, Lakshimipur. The biological parents stated the following: they relinquish all parental rights of the visa applicant in favor of the sponsor and her husband. They relinquish all rights for present and future custody and have no future claim with respect of the visa applicant.

    ·Legal Guardianship Order issued by the Family Court Bangladesh dated 8 March 2017. This records the sponsor and her husband as guardians of the visa applicant.

    ·No Objection Certificate issued by the Ministry of Home Affairs dated 16 May 2017. This provides information as follows: the family court appointed the sponsor and her husband as legal guardians of the visa applicant. There is no objection to a passport being issued to the visa applicant or for her to be taken abroad.

    ·Passport issued to the visa applicant by the People’s Republic of Bangladesh on 10 January 2016. This records the sponsor and her husband as the visa applicant’s parents.

20. The Tribunal is satisfied that the legal effect of the court documents including the Legal Guardianship Order issued by the Family Court Bangladesh dated 8 March 2017, the No Objection Document issued by the Ministry of Home Affairs, Bangladesh dated 16 May 2017 and the biological parents affidavit is to give to the sponsor and her husband full and permanent parental rights for the visa applicant and that these rights have been lawfully obtained. The Tribunal is further satisfied the effect of the orders made is to sever any ties at law between the visa applicant and her biological parents.

    Regulation 1.04 Adoption

    (1)   A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    …

    (c)  other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2) For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

    (a)  the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

    (b)  the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

    (c)  the Minister is satisfied that:

    (i)  formal adoption of the kind referred to in paragraph (1)(b):

    (A)  was not available under the law of the place where the arrangements were made; or

    (B)  was not reasonably practicable in the circumstances; and

    (ii)  the arrangements have not been contrived to circumvent Australian migration requirements.

21. On 8 March 2017, a Legal Guardianship Order and arrangements were made in accordance with the usual practice in Bangladesh. As the sponsor has been the primary carer of the visa applicant since her birth, the relationship between the sponsor and the visa applicant is significantly closer than the visa applicant’s relationship to any other person. She assumed a parental role at that time and has remained in Bangladesh to care for the visa applicant. As evidenced by the information before the Tribunal formal adoption is not available under the law of Bangladesh. The Tribunal is satisfied that the arrangements for the visa applicant have not been contrived to circumvent Australia’s migration requirements. The Tribunal Is satisfied that the definition in Regulation 1.04 of the Regulations is met.

22. Therefore the requirements are met in accordance with the provision of Adoption visa cl.102.211(2)(d) of Schedule 2 to the Regulations.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 102 visa.

    DECISION

24. 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(2) of Schedule 2 to the Regulations.

    Helena Claringbold
    Member

    ATTACHMENT – Extract from Migration Regulations 1994

    Subclass 102—Adoption

    102.21—Criteria to be satisfied at time of application

    102.211 

    (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.

    Regulation 1.04 Adoption

    (1)  A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    (a)      formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

    (b)  formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

    (c)  other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2) For the purposes of paragraph For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

    (a)  the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

    (b)  the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

    (c)  the Minister is satisfied that:

    (i)  formal adoption of the kind referred to in paragraph (1)(b):

    (A)  was not available under the law of the place where the arrangements were made; or

    (B)  was not reasonably practicable in the circumstances; and

    (ii)  the arrangements have not been contrived to circumvent Australian migration requirements.