Delos Reyes (Migration)

[2023] AATA 3969

Delos Reyes (Migration) [2023] AATA 3969 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Andrie Delos Reyes

REPRESENTATIVE:  Ms Eva O'Keefe (MARN: 0743533)

CASE NUMBER:  2003464

HOME AFFAIRS REFERENCE(S):          CLF2018/357344

MEMBER:Margie Bourke

DATE:14 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802.213 of Schedule 2 to the Regulations.

Statement made on 14 September 2023 at 12:56pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adoption – overseas adoption – overseas residence requirement not met – compelling or compassionate circumstances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 802.213

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 10 February 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 October 2018. 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).

3. 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.

4. The delegate refused to grant the visa on the basis that cl.802.213 was not met because the delegate was not satisfied the applicant met the requirements of subclause (2), (3), (4) or (5).

5. The Tribunal has considered the information in the Department’s decision record dated 10 February 2020, the information provided by the applicant to the Department and the information provided to the Tribunal. The Tribunal is satisfied it can make a decision favourable to the applicant without proceeding to a hearing, based on the information available to it, pursuant to s.360(2)(a) of the Act.

6. The following are the written reasons that the Tribunal has concluded the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Adoption criteria

7. 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, extracted in the attachment to this decision.

   Information and evidence relevant to the issues to be determined in the review

8. The Tribunal has considered the identity documents in relation to the applicant and is satisfied the applicant was born on ** November 2004.

9. The Tribunal has considered the documents provided in relation to the application for adoption of the applicant by his adoptive parents Vivencio C Delos Reyes II and Jenifer Pateno-Delos Reyes. The Tribunal to satisfied the application for adoption was lodged in the Regional Trial Court, seventh Judicial Region, branch 24, Cebu City, Republic of the Philippines. Tribunal is satisfied that the application for adoption was filed 20 June 2014, the first initial hearing was scheduled 16 February 2015, and the final decision granting and confirming the adoption is dated 27 June 2017. The Tribunal notes that the final decision decrees that effective from 20 June 2014, the date the petition was filed, the applicant shall be considered the legitimate child of the petitioners, the adoptive parents of the applicant.

10. The Tribunal accepts the Deed of Voluntary Commitment dated 27 May 2014, that the biological mother of the applicant consented to the adoption.

11. The Tribunal accepts the evidence before it that the applicant had resided with his adoptive parents from March 2005 when he was four months old. The Tribunal accepts that the adoptive parents migrated to Australia, as the holders of a carer visa on 7 November 2011. At this time the applicant had not been legally adopted by his adoptive parents. The Tribunal is satisfied that the applicant remained in the Philippines with his adoptive mother’s mother in 2011. The Tribunal is satisfied that in 2011 the applicant’s adoptive parents had not undertaken any legal adoption process because of the cost of the process. The Tribunal is satisfied that the legal adoption process was initiated in 2014 by the adoptive parents.

12. The Tribunal is satisfied that the applicant resided with his adoptive parents from March 2005 until November 2011.

13. The Tribunal is satisfied that the applicant’s adoptive mother who sponsored his application for the visa which is the subject of this review, returned to the Philippines to visit the applicant and to attend necessary court appearances in relation to the adoption application in 2012, 2014, 2015, and 2016. The Tribunal accepts that the applicant’s mother returned to the Philippines after she migrated to Australia in November 2011 for a total of 184 days.

14. The Tribunal is satisfied that in the 12 months prior to the adoption order being made on 27 June 2017, the applicant’s adoptive parents did not return to the Philippines. The Tribunal accepts the signed written evidence of the adoptive parents that they did not have any further annual leave to travel back to the Philippines, that they were advised by their lawyer in the Philippines they were not required to attend further court hearings, and they were working and saving during that time to prepare for the applicant’s arrival in Australia. The Tribunal also accepts that the applicant’s adoptive parents have a child of their own, younger than the applicant, who resides in Australia.

    Assessment of whether the applicant meets the criteria in cl.820.213

15. The applicant was sponsored by an Australian citizen, his adoptive mother and was aged under 18 when the adoption order was made on 27 June 2017. Therefore, the applicant meets the requirements of cl.802.213(1)(a).

16. To meet the requirements of cl.802.213(1)(b) the applicant is required to meet the requirements of either subclause (2), (3), (4) or (5).

17. The applicant does not meet the requirements of cl.802.213(2) as based on the information available to the Tribunal, there is not an adoption compliance certificate, in accordance with the Adoption Convention, in force in relation to the adoption.

18. The applicant does not meet the requirements of cl.802.213(3) as the applicant’s adoptive parent was an Australian citizen or holder of an Australian permanent resident visa at the time the adoption took place.

19. The applicant does not meet the requirements of cl.802.213(4) as based on the information provided to the Tribunal, no competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or approved the adoptive parent and the adoptive parent’s spouse or de facto partner as suitable adoptive parents, for the applicant, before the adoption.

20. The Tribunal finds that the applicant meets the requirements of cl.802.213(5) for the following reasons.

21. The applicant was adopted in an overseas country, and the adoptive parent was, when the adoption took place, an Australian citizen or holder of a permanent Australian visa, at the time the adoption took place. Therefore, the applicant meets the requirements of cl.802.213(5)(a).

22. When the adoption took place, the adoptive parent had not been residing overseas for more than 12 months, and the applicant therefore does not meet the requirements of cl.802.213(5)(b)(i).

23. However I am satisfied that because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant. The compelling or compassionate circumstances include that the applicant had resided with his adoptive parents since he was four months of age, and he could not migrate to Australia with his adoptive parents when they came to Australia because he had not been formally adopted and he remained in the Philippines with his maternal adoptive grandmother. The applicant’s adoptive parents initiated formal legal adoption procedures, which took three years to be finalised. The adoptive order decreed in June 2017, that the applicant was recognised as the child of the adoptive parents from the date the application for adoption was initiated in June 2014. The adoptive parent who sponsored the applicant had lived with the applicant for over 6 ½ years, and continued to return to visit the applicant after she migrated to Australia. The Tribunal finds the applicant had a long and committed history and a strong family bond with his adoptive parents, and the adoptive parents were in daily communication with the applicant whilst they lived in separate countries. The Tribunal accepts that the applicant’s adoptive parents had exhausted their annual leave, had commitments to their biological son and employment in Australia and were unable to keep returning to the Philippines during the third year of the adoption process prior to the decision being made in the Regional Trial Court in June 2017. The Tribunal finds the commitment of the adoptive parents to the applicant during the lengthy adoption process, and the reasons why the adoptive parents did not reside overseas for more than 12 months at the time of the adoption amounts to compelling or compassionate circumstances. Therefore, the Tribunal finds the applicant meets the requirements of cl.802.213(b)(ii).

24. The Tribunal 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. The Tribunal is satisfied that the adoptive parents were citizens of the Philippines, and the applicant resided with the adoptive parents in the Philippines prior to any application by the adoptive parents to migrate to Australia, and the need for the legal adoption process. Therefore, the applicant meets the requirements of cl.802.213(5)(c).

25. The Tribunal is satisfied, based on the documents provided, that the adoptive parents, the adoptive mother who is the sponsor and the adoptive father, have acquired full and permanent parental rights by the adoption. Therefore, the applicant meets the requirements of cl.820.213(5)(d).

26. The reasons set out above the Tribunal is satisfied that the applicant meets the requirements of cl.802.213(5)(a), (b), (c) and (d), and therefore satisfies the requirements of cl.820.213(5).

27. As the Tribunal finds that the applicant meets the requirements of cl.802.213(5), the Tribunal is satisfied the applicant meets the requirements of cl.802.213(1)(b).

28. For all the above reasons, the Tribunal is satisfied that the applicant meets the requirements of cl.802.213.

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

    DECISION

30. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl 802.213 of Schedule 2 to the Regulations.

    Margie Bourke
    Member

    
    

    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.