BASNET (Migration)

[2020] AATA 5661

BASNET (Migration) [2020] AATA 5661 (15 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sujata BASNET

VISA APPLICANT:  Mr Rikesh BASNET

CASE NUMBER:  1933465

HOME AFFAIRS REFERENCE(S):          2017053255 OSF2017/053255 PNJ

MEMBER:Michael Cooke

DATE:15 December 2020

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 101 (Child) visa:

·cl.101.211 of Schedule 2 to the Regulations

·cl.101.212 of Schedule 2 to the Regulations

·cl.101.213 of Schedule 2 to the Regulations

·cl.101.221 of Schedule 2 to the Regulations

Statement made on 15 December 2020 at 2:40pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – adopted child of the sponsor – adopted by visa applicant’s paternal aunt – formal adoption arrangements made in accordance with the laws of Nepal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.04; Schedule 2, cls 101.211, 101.212, 101.213, 101.221

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 16 September 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 September 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).]

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate found that the applicant was not legally adopted by his paternal aunt (Ms Sujata BASNET) the review applicant sponsor.

5. The review applicant was represented in relation to the review by her registered migration agent.

6. The Tribunal has the benefit of copious additional information from the sponsor in which she evidences:

   ·1. Deed of Adoption - Land revenue Office. Sujata BASNET

   ·2. Adoption Verified Recommendation - Ward 1 Kulung. 23 Nov 2020. Sujata BASNET

   ·3. Adoption Recommendation - Ward 1 Kulung. 25 Oct 2019. Sujata BASNET

   ·4. Adoption Recommendation - Ward 9 Gausala. 1 Nov 2019. Sujata BASNET

   ·5. Passport. Rikesh BASNET

   ·6. Passport - Sujata BASNET

   ·7. Relationship Certificate - 14 Oct 2019. Sujata BASNET

   ·8. Medical report. Somendra BASNET

   ·9. Disability Identity Card - Somendra Bahadur BASNET

   ·10. Citizenship Card - Somendra BASNET

   ·11. Education Evidence - Rikesh BASNET

   ·12. Financial Evidence - Property Documentation in Kathmandu - Sujata BASNET

   ·13. Lawyer letter - Narandra Prakash KHANAL

   ·14. Bank Statement - From 29.05.20 - 03.12.20.  Rikesh BASNET

   ·15. Movement Records - Sujata BASNET

   ·16. Joint Bank Statement - Sujata BASNET

   ·17. Declaration Statement - Rikesh BASNET

   ·18. Witness Statement - Sita Basnet

   ·19. Statutory Declaration Beni Bahadur KC

   ·20. Statutory Declaration - Sujata BASNET

   ·21. Affidavit Somendra - Bahadur BASNET

   ·22. Witness Statements - Six more Family and Friends

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant was legally adopted by the sponsor.

   The Sponsor’s Representative’s Submission

   We submit that the applicant meets all the Schedule 2 criteria for the grant of the Child visa Subclass 101, excluding the health and recent police clearance which will be done in timely manner as soon as requested by the department. Please see the following points noted below to validate our submission:

   Regarding subclass 101.211 (1)(c)(ii) of the Regulation, as mentioned above the applicant was adopted overseas by Ms Basnet who was not an Australian Citizen or a permanent resident of Australia at the time of adoption but later became the Australian Citizen. Hence, meeting the requirement of the criteria.

   Regarding subclause 101.212, the sponsor is an Australian Citizen and was an Australian Citizen at the time of the application for the visa. Please see movement record and Australian passport of the sponsor in attachment number 15 and 6, respectively.

   Regarding subclause 101.213, the third primary criteria to be satisfied at the time of application is that the applicant had not turned 18. The application was lodged on 8 September 2017 and the applicant had not turned 18 at time of application (see attachment no 5).

   Regarding meeting the time of decision criteria, in pursuant to clause 101.221(1)(b) of the Regulation, the applicant satisfies the criteria as he lodged the application prior to turning 18, and now he is 21 years old. He is still financially and emotionally dependent on the sponsor, Ms Basnet. Please see attached document number 11 from the applicant’s educational institute.

   Satisfies the definition of Adoption

   It is our submission that the applicant and the sponsor satisfy the definition of adoption. Adoption has the meaning as set out in r.1.04 of the Regulations as follows:

   (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

   We confirm that the formal adoption arrangements were made in accordance with the law of Nepal for a customary adoption by a relative. Please see attached document number 1, the deed of adoption from “The Land Revenue office” which is in Dingla, Bhojpur, birthplace of the sponsor, Ms Basnet (see attachment no 6).

   (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

   Please find attachment number 17, a statement from the applicant confirming the bond of relationship between him and Ms Basnet as a parent child relationship. Please see attachment number 20, a statutory declaration from the sponsor, Ms Sujata Basnet advising of the relationship between her and the applicant. Please find attached document number 19, the witness statutory declaration from Ms Basnet’s husband who looked after him as his father for all these years with the financial help of Ms Basnet. Please find attachment no 21, an Affidavit from the biological father of the applicant, advising how has never been capable to look after the applicant. Please find attachment number 18, the witness statement from Ms Sita Basnet, who has been looking after the applicant for the last three years, as a temporary guardian in the absence of Ms Basnet and her husband Mr KC. Lastly, please find six other witness statements from family and friends in the attachment no 22.

   (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.

9. The Tribunal has revisited the delegate’s decision in the light of the additional information provided by the representative. It finds that the applicant has been formally adopted by the sponsor pursuant to the meaning of same set out in reg.1.04(1)(b).

10. The Tribunal has finds that the applicant now also meets the requirements in cl.101.211(1)(c)(ii), 101.212, 101.213 and 101.221(1)(b).

11. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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 101 (Child) visa:

    ·cl.101.211 of Schedule 2 to the Regulations

    ·cl.101.212 of Schedule 2 to the Regulations

    ·cl.101.213 of Schedule 2 to the Regulations

    ·cl.101.221 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member