Ernst (Migration)

[2019] AATA 2020

Ernst (Migration) [2019] AATA 2020 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yasmine Ruth Ernst

VISA APPLICANT:  Miss Precious Katriana AMANI

CASE NUMBER:  1834963

DIBP REFERENCE(S):  2018011588

MEMBER:Kira Raif

DATE:25 March 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.102.213 of Schedule 2 to the Regulations;

Statement made on 25 March 2019 at 3:10pm

CATCHWORDS

MIGRATION ­– Child (Residence) (Class AH) visa –Subclass 102 (Adoption) visa – whether the local laws relating to adoptions have been complied with – circumstances meet the requirements of customary adoption – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.04 Schedule 2, cls 102.212, 102.213

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 Immigration on 25 October 2018 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 Kenya, born in October 2010. She applied for the visa on 24 August 2018. The delegate refused to grant the visa on the basis that cl.102 213 was not met because the delegate was not satisfied that Kenyan laws relating to adoption have been met. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 20 February 2019 to give evidence and present arguments. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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. There is no evidence before the Tribunal to suggest that the applicant meets any of the key criteria for the subclass 101 or subclass 117 visas.

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 102.213. It requires that the laws relating to adoption of the country in which the child is normally resident have been complied with.

   Does the adoption meet the Kenyan adoption laws?

6. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant provided with her application an order of the Children’s Court in Nairobi. The Order dated 28 September 2017 states that the sponsor has been granted guardianship and sole custody of the visa applicant. The delegate noted that the guardianship and custody do not equate to adoption. The delegate refers to the advice from the Department’s Nairobi post which indicates that there is presently a moratorium in place for international adoptions, which was implemented in November 2014. It provides that no adoptions can be granted to foreign parents. As such, the delegate was not satisfied the applicant met cl. 102.213.

7. In her submission to the Tribunal dated 21 December 2018 the review applicant states that the visa applicant has been customarily adopted by her. The review applicant notes that the visa applicant previously applied for, and was refused a Visitor visa and the Tribunal remitted the matter on the basis that the visa applicant had been customarily adopted by the sponsor. The Tribunal is mindful that the assessment of visa eligibility in relation to a Visitor requires no assessment of adoption criteria and, more significantly, there is no equivalent of cl. 102.213 in relation to Visitor visas. It was not necessary for the Tribunal in that case to determine whether the local laws relating to adoptions have been complied with. As such, the Tribunal does not consider the earlier Tribunal’s determination in relation to adoption to be binding in the present case.

8. The review applicant notes that the delegate failed to address the issue of customary adoption and it was never their submission that there was formal adoption. The review applicant states that the courts in Kenya assessed the child’s circumstances and ‘have done what they could’ to give formal structure to the situation, which amounts to formal, legal recognition of customary adoption and the fact that the child’s ties with her birth family have been completely severed. The review applicant notes that she has been unable to complete the formal adoption process due to the moratorium on adoptions but their circumstances meet the requirements of customary adoption.

9. The review applicant states that she has been caring for the visa applicant as a parent since 2011 as the child was abandoned by her biological parents. She began the formal adoption process but due to the government restrictions, it could not be completed but the arrangements have been made in accordance with the usual practice and the law of Kenya and there has been effective adoption. The review applicant refers to the various documents, including a court order of the Children’s court, stating that she has followed the only available legal process and that all the laws and legal processes relating to adoptions have been followed. The review applicant notes that the adoption was not made to circumvent the laws of Kenya, and are consistent with the purpose of cl. 102.213. The review applicant addressed the various aspects of r. 1.04, stating there was a customary adoption in place.

10. The representative submits that the Tribunal found in a related Visitor visa application that the visa applicant was customarily adopted. The Tribunal acknowledges that evidence and accepts that the customary adoption had taken place. That does not address the requirements of cl. 102.212 which does not apply in relation to the visitor visas. The representative also referred to another Tribunal decision in relation to the subclass 101 visa with similar circumstances. The Tribunal does not consider that decision helpful because there is no equivalent to cl. 102.212 in that subclass.

11. The review applicant argues that if cl. 102.213 is read so that only formal adoptions can meet the criterion, that means customarily adopted children can never be issued with adoption visas. The Tribunal does not accept that argument because customarily adopted children could meet that provision if the formal adoption is not available in the country and customary adoption is the only option. In the present case, formal adoptions are generally available, although these are not available at present due to the moratorium issued by the Kenyan government. That is, what would preclude the visa applicant from meeting cl. 102.213 is the legal moratorium on adoptions and not the fact that formal adoptions are not generally available. It is not correct to state then that customary adoptions could never meet cl. 102.213. Rather, the requirement will or will not be met in this particular case and at this particular time because of the present circumstances in Kenya. Should these circumstances change, the assessment may be different.

12. The Tribunal does not accept the applicant’s argument that cl. 102.213 is only concerned with formal adoptions and not customary adoptions. To read that provision in the way suggested by the applicant would mean that it is possible to circumvent the laws of the country relating to adoption by undertaking customary adoptions. In this case, the law of Kenya clearly places a moratorium on adoptions, so the clear intention of the Kenyan authorities is that adoptions by foreign nationals should not take place. If cl. 102.213 was only concerned with formal adoptions and not customary adoptions, there would be a simple way to overcome the requirement to comply with the local laws and the Tribunal does not consider that is the intention or the purpose of that provision.  Thus, even though there is a customary adoption of the visa applicant by the sponsor, which the Tribunal accepts, the Tribunal does not consider that the visa applicant is not required to meet cl. 102.213 or that she meets that requirement simply by virtue of the fact that the adoption is a customary one and not a formal one.

13. The Tribunal has considered what the laws of Kenya state in relation to adoptions. The following information is before the Tribunal, and has been provided to the applicant.

14. In November 2014, the Kenyan Cabinet placed an indefinite moratorium on the adoption of Kenyan children by foreigners and revoked all licences to conduct inter-country adoptions.[1] The July 2017 High Court of Kenya judgement states that ‘the Moratorium was first expressed in a Ministerial directive’. According to an article on the Standard Digital website, a Kenyan news source, the decision to introduce the moratorium was informed by Kenya’s poor ranking in the United Nations Office on Drugs and Crime’s 2014 global trafficking report – which cited Kenya as a source, transit and destination country for human trafficking – along with concerns about growing numbers of child trafficking cases through the abuse of Kenya’s adoption processes by foreigners.[2] A Cabinet statement cited in the article noted that existing Kenyan laws did not define child sale, child procuring, child trade and child laundering as child trafficking:

    “This has in effect put Kenyan children at high risk as it creates a loophole for fraudulent, vested interests, masquerading through ownership of children homes, adoption agencies and legal firms representing children, and adopters, to engage in the unscrupulous business of human trafficking under the guise of charity,” read part of the Cabinet statement.[3]

    [1] ‘Kenyan Government bans adoption of children by foreigners’, Standard Digital, 29 November 2014, 20190313160045; ‘Kenya: Cabinet Approves Indefinite Ban On Adoption of Kenyan Children By Foreigners’, The Star, 27 November 2014, 20190313160412  

    [2] ‘Kenyan Government bans adoption of children by foreigners’, Standard Digital, 29 November 2014, 20190313160045  

    [3] Kenyan Government bans adoption of children by foreigners’, Standard Digital, 29 November 2014, 20190313160045  

15. According to a number of sources, the moratorium was intended to be accompanied by a revision of laws, rules and regulations within Kenya’s 2001 Children Act and criminal legislation to guard against trafficking of children.

16. Significantly, information before the Tribunal indicates that the moratorium does not amount to a law. According to the July 2017 High Court of Kenya judgement, ‘in the circumstances, at best the moratorium can only be an executive directive’.[4] However, the October 2015 High Court of Kenya judgement and information provided by foreign governments to their citizens about the moratorium indicate that it has legal effect.[5]

    [4] Information found indicates that the moratorium does not amount to a law. According to the July 2017 High Court of Kenya judgement, ‘in the circumstances, at best the moratorium can only be an executive directive’.14 However, the October 2015 High Court of Kenya judgement and information

    [5] ‘Adoptions Cause No. 115 of 2015: In the Matter of Children Act, 2001 and In the Matter of Baby IJ – Minor’, High Court of Kenya, 27 October 2015, p.3, 20190313163806; ‘Countries with suspensions or restrictions on international adoptions’, Government of Canada, 29 August 2018, 20190313162716; ‘Adopting a child from Kenya’, Kingdom of the Netherlands, 7 February 2017, 20190313163057  

17. Having regard to the above information, the Tribunal finds that there presently exists a moratorium on adoptions which in effect precludes adoption of children by foreign nationals. However, the information also indicates that the moratorium does not amount to a law. It was first expressed in a Ministerial directive and amounts to an executive directive rather than the law and there is no evidence that processes relevant to law-making have been completed.

18. Clause 102.213 requires that the laws relating to adoption of the child’s country of residence have been complied with. In the Tribunal’s view, this provision relates to the legal requirements, rather than merely administrative requirements relevant to adoptions.  In this case, there is no law preventing the adoption from taking place. The Tribunal finds that the laws relating to adoptions in Kenya have been complied with. The Tribunal is satisfied the visa applicant meets cl. 102.213.

    CONCLUSION

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

    DECISION

20. 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.102.213 of Schedule 2 to the Regulations;

    Kira Raif
    Senior Member