Dramay (Migration)

Dramay (Migration) [2020] AATA 327 (17 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Foungbeh Dramay
VISA APPLICANT:  Miss Matuma Darame
CASE NUMBER:  1704711
DIBP REFERENCE(S):  OSF2012096846
MEMBER:Carmel Morfuni
DATE:17 January 2020
PLACE OF DECISION:  Melbourne

DECISION
The Tribunal Affirms the decision not to grant the visa applicant a Child (Migrant)(Class AH) Subclass 102 Visa.
Statement: 17 January 2020 at 1.32pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa –Subclass 102 (Adoption) visa – no court adoption order has been provided–no certified copies of the child’s adoption certificate provided – sponsor had not resided overseas for more than 12 months at the time that the application was lodged –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.04, Schedule 2, cls 102.211, 102.221
Family Law Act 1975

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 January 2017 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).
The visa applicant applied for the visa on 27 December 2012. The delegate refused to grant the visa on the basis that:
·the applicant did not meet the requirements of one or more clauses in Schedule 2 subclasses102.211 and 102.221 of the Migration Regulations.
The visa applicant made no claim of any of the other subclasses within the Child Visa Class – Child (subclass 101) and an Orphan Relative (subclass 117).
The review applicant (sponsor) lodged an application for review together with a copy of the delegate’s decision on 14 March 2017.
The Tribunal hearing was conducted with the assistance of an interpreter over the telephone in the English and Mandingo languages.
The review applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The visa applicant gave evidence by telephone through the interpreter. No other witnesses were called.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Regulation 1.04 defines Adoption, Adopt and as:
The key requirements contained in r.1.04 are:
·the adopter must have assumed a parental role in relation to the adoptee;
·the role must be assumed before the adoptee attained 18 years of age;
·the role must be assumed under certain arrangements, namely:
-formal adoption arrangements under Australian (or state/territory) law;
-formal adoption arrangements under foreign law, where the adoption results in the legal recognition of the adopter(s) as the parent(s), in place of the previously recognised parents; or
-certain other arrangements entered into outside Australia that are ‘in the nature of adoption’ (referred to as ‘customary adoption’).
No claim has been made by the applicant or review applicant in relation to customary adoption, Child (subclass 101) or an Orphan Relative (subclass 117) nor has any evidence been provided.
This decision has been made in accordance with the President’s direction 8.2 which states: As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.
The issue in the present case is whether or not the applicant meets the criteria in relation to the Child (Migrant) (Class AH) subclass 102 visa (Adoption). A copy of subclass clauses 102.211 and 102.221 is attached to this decision
the Tribunal has also considered subclasses 101 and 117 as no claims have been made and no evidence provided and has dealt with the matter under clauses 102(2) in accordance with the President’s direction.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Visa applicant was born on 1 May 1998 and at the date of application was aged 14. At the date of this decision, she is aged 21. According to the application, her biological father has passed away and her mother is shown as unknown (Question 27 of the application document). She has two sisters born respectively on 6 May 2009 and 2 May 2002 who both reside in Guinea at the date of application (Q27). The Visa applicant’s main language is Mandingo. She has never been married and the sponsor claims that she is an adopted child of his.
At the date of application, a child under the age of 18 must be a biological child of the Australian parents, an adopted child or stepchild within the meaning of the Migration Act 1958, or a child conceived through artificial conception is provided in the Family Law Act 1975 or a child born under surrogacy arrangements where parentage has been transferred by court order under a prescribed state or territory, the child must not be engaged to be married, married, or in the DeFacto relationship.
The sponsor is an Australian citizen granted citizenship on 14 June 2012 which he confirmed in oral evidence.
In the sponsorship document, the review applicant claims that the child is an adopted child of the sponsor (Question 9).
The sponsor provided an affidavit of consent from the biological mother of the child Madam Myamu DUKULY sworn in Liberia on 10 November indicating that she is the biological mother of the visa applicant and that she is unemployed and unable to care for, maintain educate and support the Visa applicant, commenting that the applicant will be in the custody of her adopted father, the review applicant and that she is giving her consent for custody and of the visa applicant to travel to be with her adopted father in Australia. Other than this consent of the mother, there is no formal evidence of adoption provided by the review applicant.
The sponsor provided a statutory declaration dated 24 January 2012 indicating that he had been granted a humanitarian Visa for Australia in March 2008. He states that he is separated from his spouse and has lost contact with his children who now live with their aunt in Guinea. He indicates that he wishes to sponsor the children to Australia.
The alternatives under Part C of the sponsorship application (Question 10) does not indicate at which time the Visa applicant was adopted i.e. before the sponsor became an Australian citizen, after he became an Australian citizen, or that he has not yet adopted the child but the child has been allocated to him for adoption. When asked by the Tribunal at the hearing, he said he did not know.
The review applicant’s attests in his sponsorship application (question 13 ) that a certified copy of a court order of adoption giving him sole legal right to determine where the child shall live is attached and gives permission for the child to migrate permanently no court adoption order has been provided. In oral evidence, in answer to a question from the Tribunal he agreed with that and had no further comment
No certified copies of the child’s adoption certificate as required under any of the categories has been provided. Under question 13 the sponsor indicates that he has attached a certified copy of a court order giving him sole legal right to determine whether to child shall live or the right to permanently remove the child from the country and gives permission for the child to migrate permanently. No such order appeared on the file. He stated pursuant to question 13, that he has the sole legal right to determine where the child shall live or to permanently remove the child from their home country. He is required to attach either completed form 1229 consents to grant an Australian Visa to a child under the age of 18 years or a statutory declaration from each of the people giving permission for the child to migrate.
The review applicant was asked on several occasions (for letter dated 28 April 2016 (Department folio 99) requesting by email that the sponsor provide copies of adoption papers or the adoption compliance certificate. He responded with the mother’s affidavit referred to in paragraph 17 above.
The applicant provided a copy of the delegate’s decision to the Tribunal on 14 March 2017 (folio 13). In oral evidence, the applicant indicated that he had seen and understood the delegate’s decision.
By letter forwarded by email on 23 March 2017 from the Tribunal to the review applicant the applicant was advised that the application was refused on 4 January 2017 by the Department which attached the decision record setting out the reasons. provided by the delegate which specifically include the following:
“… in accordance with the requirements of subclass 102.221(2) the sponsor is required to have been residing out of Australia for more than 12 months at the time of application. The application was lodged on 27 December 2012. Departmental movement records show the sponsor has not departed Australia since 13 March 2008. From this, it is evident that the sponsor had not resided overseas for more than 12 months at the time that the application was lodged “.
An exemption from s359AA of the Act is contained in s359A(4)(b) which states (referring to section 359 AA): This section does not apply to information: that the applicant gave for the purpose of the application for review. The Tribunal relies on section 359A(4)(b) in this case.
The delegate found therefore that the applicant did not satisfy subclass 102.211(2)(b)(ii) at the date of application. In oral evidence, in response to the Tribunal’s question, the Review Applicant agreed with this.
In addition, in relation to whether or not the sponsor has lawfully acquired full and permanent parental rights by an adoption which is recognised in Australia, no such proof has been provided and therefore he was unable to meet the relevant criteria at the date of application in relation to that matter under cl.102.211(2)(d).
The tribunal has concluded that the mother’s affidavit is not evidence of formal adoption as required under cl. 102.221(2)(b) at the date of decision and in the absence of a court order in accordance with the requirements of r1.04 does not provide the evidence required under the Act.
Clause 102.211(2) requires the sponsor to have been living out of Australia for more than 12 months at the time of application according to his evidence. He therefore has not resided outside Australia for more than 12 months at the time of lodging the application and does not meet the requirements of this subclass.
When asked by the Tribunal at the conclusion of the hearing whether or not he had any further comments to make in relation to the evidence provided at the hearing he said no.
The Tribunal has considered subclasses 101 and117. As the review applicant has provided any evidence that meets the criteria nor has the applicant made any claims or provided any evidence in relation to these subclasses, the Tribunal has no basis on which to make any findings in relation to them.
The Tribunal finds that the applicant does not satisfy the requirements of an Adoption Child (Migrant)(Class AH) Subclass 102 Visa under subclass102.211(2) at the date of application or regulation 102.221 at the date of decision thus, the delegate’s decision will be affirmed.
DECISION
The Tribunal Affirms the decision not to grant the visa applicant an Adoption Child (Migrant)(Class AH) subclass 102 Visa.
Carmel Morfuni
Member
Schedule 2
Regulation - 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.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant has not turned 18; and
(b) the applicant is resident in an overseas country; and
(c) either:
(i) a person who is not in a married relationship or de facto relationship, and who is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen has undertaken in writing to adopt the applicant; or
(ii) spouses or de facto partners, at least one of whom is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, have undertaken in writing to adopt the applicant; and
(d) a competent authority in Australia:
(i) has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or
(ii) has approved the prospective adoptive parent and the spouse or de facto partner of the prospective adoptive parent as suitable adoptive parents for the applicant.
(4) An applicant meets the requirements of this subclause if:
(a) the applicant has not turned 18; and
(b) the applicant is resident in an overseas country; and
(c) a competent authority in the overseas country has allocated the applicant for prospective adoption by a person who is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, or such a person and that person's spouse or de facto partner; and
(d) either:
(i) arrangements for the adoption are in accordance with the Adoption Convention; or
(ii) the adoption is of a kind that may be accorded recognition by regulation 5 of the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998; and
(e) a competent authority in Australia:
(i) has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or
(ii) has approved the prospective adoptive parent and the spouse or de facto partner of the prospective adoptive parent as suitable adoptive parents for the applicant.
(5) An applicant meets the requirements of this subclause if:
(a) the applicant has not turned 18; and
(b) the applicant was adopted in accordance with the Adoption Convention, in an Adoption Convention country, by a person who was an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen when the adoption took place, or by such a person and that person's spouse or de facto partner
Regulation 102.22 Criteria to be satisfied at time of decision
102.221
The applicant continues to satisfy the criteria in clauses 102.211 and 102.213

[2020] AATA 327

17 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice