Beyene (Migration)

[2018] AATA 2601

Beyene (Migration) [2018] AATA 2601 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Birhanu Beyene

VISA APPLICANT:  Ms Senait Abebe Gebreyohannis

CASE NUMBER:  1609481

DIBP REFERENCE(S):  OSF2015/075299

MEMBER:Kira Raif

DATE:14 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 14 June 2018 at 4:29pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – twelve month residence requirement – Temporal link between residence and time of application – Evidence of adoption – Family’s capacity to travel – Period of child care – Not a relative – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.04, Schedule 2 cls 101.211, 101.212, 117.211

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 Immigration on 26 April 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Ethiopia born in January 1998. She applied for the visa on 29 June 2015. The delegate refused to grant the visa on the basis that cl. 102.211 was not met. The sponsor seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 8 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse and friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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 of the Regulations. The applicant sought to be assessed against the subclass 102 (Adoption) visa.

5. 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). 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.

   Is the applicant an adopted child?

6. The review applicant provided to the Tribunal a copy of the primary decision record.

7. The visa applicant was born in January 1998 and was under the age of 18 at the time the visa application was made. She claims to have been adopted by the sponsor in February 2009 and she provided with the application evidence of the court order approving adoption dated 2014. The primary decision record indicates that the date of the court order is the date of the adoption, so the adoption took place in February 2014. The primary decision record indicates that the sponsor was granted Australian citizenship in May 2013.

8. The review applicant’s evidence to the Tribunal is that the children were adopted through the courts before 2007 and at that time he had the responsibility to care for the visa applicant. The other children had been allowed to migrate to Australia but because there were additional criteria for this visa applicant, the Department asked them for additional papers in relation to the visa applicant and they had approached the Court for the adoption.

9. There is no documentary evidence before the Tribunal to show that the visa applicant was adopted in, or before, 2007. If that was the case, the Tribunal notes that the visa applicant would be unable to meet cl. 102.212(2)(b) because the sponsor was not an Australian relative citizen or permanent resident at the time.

10. There is no evidence that a competent authority in Australia has approved the prospective adoptive parent or allocated the applicant for prospective adoption. The review applicant’s evidence to the Tribunal is that they have approached the relevant agency in Australia but the agency would not intervene because the visa applicant is a relative and they advised that they do not intervene in family adoptions. The Tribunal is not satisfied that the requirements of cl. 102.211(3) and (4) are met. There is no evidence that the applicant has been adopted in accordance with the Adoption Convention and the Tribunal is not satisfied she meets cl. 102.211(5).

11. The applicant seeks to meet cl. 102.211(2). The visa applicant was under the age of 18 at the time the application was made. She meets cl. 102.211(2)(a). The review applicant provided to the Tribunal a copy of the primary decision. It indicates the sponsor acquired the Australian citizenship in May 2013. As the adoption took place in February 2014 the Tribunal is satisfied the applicant was adopted by a person who was at the time of adoption, an Australian citizen. The visa applicant meets cl. 102.211(2)(b)(i)

12. Clause 102.211(2)(b)(ii) requires the applicant to have been adopted overseas by a person who had been residing overseas for more than 12 months at the time of the application. According to the primary decision record, the sponsor has not lived overseas for more than 12 months at the time of the application and the review applicant’s oral evidence to the Tribunal is that he has not lived overseas for 12 months at the time of the application.

13. The review applicant argues that he has lived with the child for many years before migrating to Australia and that the child has been living with his family from a young age. In his post-hearing written submission to the Tribunal of 12 June 2018 the review applicant notes that has been living overseas for 25 years, including for a lengthy period before his migration to Australia. The review applicant argues that overseas residence need not occur at the time of the application because the legislation does not require it. The Tribunal accepts that the sponsor has been living overseas for more than 12 months prior to his migration to Australia. However, on the reasoning in Nguyet Huong Phung, it is not sufficient that the sponsor had resided overseas at some point of time. Contrary to the applicant’s submission, there must be some temporal link between the overseas residence and the time of application and the Tribunal is not satisfied that it exists in the present case. While the Tribunal acknowledges the review applicant’s submission that there is no express provision in the legislation that the overseas residence must have occurred immediately before the application, there is the requirement that such residence must have occurred ‘at the time of the application’ and not to impose any temporal link between the application and the overseas residence – as the review applicant suggests – would render that phrase redundant. While the Tribunal accepts that the sponsor has been resident overseas for more than 12 months, the Tribunal does not accept that such residence was ‘at the time of the application’. The review applicant claims there is ‘no point’ to that provision but that is not a matter for the Tribunal to determine.

14. The review applicant provided a number of documents to the Tribunal on 20 and 30 April 2018. The review applicant provided to the Tribunal a copy of the adoption order, the visa applicant’s birth certificate, medical and school reports and other materials, including copies of her communication with the delegate. The Tribunal acknowledges that evidence but it does not assist the visa applicant in establishing her eligibility for visa grant.

15. In his written submission to the Tribunal of 30 April 2018 the review applicant outlined the family circumstances and the background to this visa application. The review applicant outlined his concerns with the way the application was processed. The review applicant argues that the decision is incorrect because the visa applicant has been living with his family for many years and the delegate incorrectly applied the legal requirements. The Tribunal is mindful, however, that the statutory requirements, including the 12 months residence requirement, apply irrespective of the child’s place of residence or connections with the family.

16. The Tribunal is not satisfied, on the basis of the review applicant’s own evidence, that he has lived overseas for more than 12 months at the time the application was made. As noted above, the Tribunal does not consider that general residence overseas at a time prior to the review applicant’s migration to Australia is sufficient and the Tribunal is of the view that the relevant residence overseas must occur ‘at the time of the application’, that is, in close proximity to the date of the application. This did not occur in the present case and the Tribunal is not satisfied the visa applicant meets cl. 102.211(2)(b)(ii). The Tribunal is not satisfied the visa applicant meets the requirements of cl. 102.211.

17. For the purpose of the Orphan Relative subclass, the primary decision record indicates that the visa applicant and the sponsor are cousins. The review applicant’s evidence is that the child has been living with his family since a very young age and it was his parents’, and later his responsibility to take care of the child. This was done in accordance with their culture and for that reason, there was no need to take legal action or court order. The Tribunal invited the review applicant to provide evidence of adoption. In his submission to the Tribunal of 12 June 2018 the review applicant states that following the deaths of the child’s biological parents, his parents had adopted the child in accordance with the local custom and upon their own deaths, the parents included this child as a beneficiary with the other children.

18. Even if the arrangement was in the form of customary adoption, the Tribunal is not satisfied that formal adoption was not available. The review applicant claims it was not reasonably practicable to go through the formal adoption because the family lived in a remote area, far away from the courts and could not afford to travel. They also had small children and it would not have been reasonable of them to leave the young children alone or transport the entire family to the capital city where the courts were located. The Tribunal finds these submissions unpersuasive. The Tribunal is not satisfied on the basis of the presented evidence that adoption could only have been arranged through courts or institutions because all of which were located in capital cities and far away from where the family lived. The review applicant has not presented evidence as to which courts or institutions were capable of dealing with adoption cases and of their location relative to the family’s place of residence. There is no evidence as to the family’s capacity to travel for other reasons and whether such travel took place at all. The Tribunal is not satisfied on the evidence before it that it would have been unreasonable or difficult for the family to travel to any place where the formal adoption could be arranged, even if such travel did incur cost and inconvenience. It is not sufficient to state that the family lived in a remote area and could not travel. The review applicant has not established that such travel would have been required and, if so, that it could not have been undertaken.

19. The review applicant provided to the Tribunal a statement from several witnesses which refers to the customary adoption of the visa applicant by the sponsor’s family. The Tribunal finds that document unhelpful because the concept of customary adoption has a specific meaning in the Australian immigration law. It is defined in r. 1.04. It is not apparent from the presented statement that those who signed the document were aware, or understood, that definition and that they prepared the statement with the Australian immigration law in mind. Thus, even if the local community and the local authorities believed the visa applicant to have been customarily adopted, that does not establish that customary adoption took place that would meet the statutory requirements in r. 1.04. Similarly, the Tribunal acknowledges the statement from the People’s Tribunal and accepts that the sponsor’s family has been caring for the child from a young age. However, that does not establish the child’s adoption by the sponsor’s parents.

20. On the evidence before it, the Tribunal is not satisfied that formal adoption was not available or was not reasonably practicable in the circumstances.

21. The Tribunal is not satisfied the visa applicant was adopted by the review applicant’s parents within the meaning of r. 1.04 and the Tribunal is not satisfied she became upon adoption, or that she is, the review applicant’s sibling, rather than cousin. The Tribunal finds that the visa applicant is the cousin of the sponsor. The visa applicant is not a ‘relative’ and does not meet cl. 117.211.

22. For the purpose of the Child visa, while the Tribunal accepts that the child has been adopted by the sponsor, the Tribunal finds that at the time of adoption the sponsor was an Australian permanent resident or an Australian citizen and the visa applicant does not meet cl. 101.211(1)(c)(ii). She does not meet the requirements for the grant of the Child visa.

23. The Tribunal acknowledges the evidence that the children have been traumatised as a result of the separation and are still affected. Their evidence is that visa applicant is also damaged by the process and it affects her psychologically and physically. There are statements from various organisations relating to the children’s welfare. The review applicant’s evidence is that they followed advice from the Immigration Department and did everything they were asked to do. The Tribunal accepts that evidence but has no discretion in relation to these matters.

    Conclusion

24. For the reasons above, the criteria for the grant of a Class AH visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Kira Raif

    
    

    Senior Member