Fesaitu and Minister for Home Affairs (Citizenship)

[2022] AATA 994

Fesaitu and Minister for Home Affairs (Citizenship) [2022] AATA 994 (4 May 2022)

Division:GENERAL DIVISION

File Number:          2019/1353

2019/1357

Re:Waisale Jiotama Fesaitu

Lena-Marie Kaituu

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:4 May 2022

Place:Perth

The Reviewable Decisions for application 2019/1353 and application 2019/1357 are affirmed.

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Senior Member Dr M Evans-Bonner

CATCHWORDS

CITIZENSHIP – applications for citizenship – Applicants legally adopted by an Australian citizen by domestic adoption in Fiji when they were adults – whether eligibility criteria in s 19C(2) of the Australian Citizenship Act 2007 (Cth) is satisfied – whether Fiji is a “Convention country” or “a prescribed overseas jurisdiction” – whether a Hague convention adoption – no adoption compliance certificates – recommendation that Respondent assist Applicants to make appropriate visa applications so the family can stay together in Australia – both Reviewable Decisions affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 19C(1), 19C(2), 19C(2)(a), 19C(2)(b), 19C(4), 19D(1), 19D(2)
Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998 (Cth)
Family Law (Hague Convention on International Adoption) Regulations 1998 (Cth) reg 3(1), 4, 16(1), 19

SECONDARY MATERIALS
Adoption Act 2020 (Fiji) Government of Fiji, 3 September 2020, s 34
Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption art 17, 23(1)

Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNITS 3 (entered into force 2 September 1990)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

4 May 2022

BACKGROUND

1. This application is about a mother’s love for her adopted son and daughter, and the family’s desire to stay together in Australia.

2. From 2000, the Applicants’ mother, N, a single woman with no children who resided in Australia, regularly travelled to Fiji to visit her mother and other family members. On one of these visits, she met and fell in love with J, who had two biological children, Ms Kaituu (then aged six) and Mr Fesaitu (then aged seven), from a previous relationship. I will collectively refer to them as the “Applicants”. N also fell in love with the Applicants and raised and supported them with J, as her own children. N and J were married in 2006.

3. In 2007, J moved to Sydney where N was based due to her employment being located there. J is now an Australian citizen, but when both the Applicants were born, he was a citizen of Fiji.

4. The couple decided that they could better support the children financially from Sydney and that it was in the Applicants’ best interests to finish their schooling in Fiji. The Applicants lived with family members in Fiji and N and travelled to Fiji several times a year to spend time with the Applicants until they finished school in 2016 and 2017.

5. N legally adopted the Applicants in Fiji when they were adults. Ms Kaituu was adopted on 14 August 2018 when she was 20 years of age. Mr Fesaitu was adopted on 15 August 2018 when he was also 20 years of age. Adoption orders were made in Fiji making both J and N the legal parents of the Applicants. 

6. The Applicants came to Australia to join their parents on 16 August 2018 on visitor (subclass 600) visas.

   CITIZENSHIP APPLICATION

7. The Applicants both applied for citizenship on 29 August 2018. They did so by each lodging a “Form 1272 – Application for Australian citizenship for children adopted under full Hague Convention or bilateral arrangements”. 

8. On 10 September 2018, the Applicants were granted bridging (subclass 050) visas which enabled them to stay in Australia pending the determination of their citizenship applications.

9. In October 2018, Ms Kaituu gained employment in hospitality at a brewery, and in February 2019, Mr Fesaitu gained employment at the same company. The Applicants became valued employees, as indicated by references provided by their employer and the head chef at the brewery where they work. I also note numerous character references concerning the Applicants from colleagues and friends which attest to their good character and their close friendships in the Australian community.   

10. However, on 15 February 2019, a delegate of the Respondent made two separate decisions refusing the Applicants’ applications for Australian citizenship (the Reviewable Decisions).

11. The Applicants, who were represented by their mother, N, throughout the entire application process and at the hearing, sought review of the Reviewable Decisions in this Tribunal. J, the Applicants’ father, was also present at the hearing.

    THE ISSUE AND THE HEARING 

12. The basis for the Reviewable Decisions was that the Applicants did not meet the eligibility requirements for citizenship in s 19C(2) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act). Consequently, the issue before me is whether the Applicants meet these eligibility requirements.

13. The hearing was on 29 October 2021. I subsequently gave the Applicants additional time after the hearing to obtain further legal advice about this application and the visa options available to them, and to make further submissions. This was because the Applicants and their mother expressed to me that they had exhausted all visa opportunities that would allow the Applicants to stay in Australia. Their understanding was that if this application was not successful, the Applicants would be returned to Fiji. The prospect of separation was extremely distressing to the family, including the Applicants’ father, J. The family’s love for each other and their desire to stay together was readily apparent to me at the hearing. It was clear to me that N had done everything she could to facilitate the family staying together in Australia. The Applicants were able to obtain legal advice and consequently filed further submissions and evidence on 1 December 2021. The Respondent filed submissions in reply on 13 December 2021.

    THE LEGISLATION

14. Section 19C(1) of the Citizenship Act provides that:

    A person may make an application to the Minister to become an Australian citizen.

15. Section 19D(1) of the Citizenship Act provides that:

    If a person makes an application under s 19C, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

16. However, s 19D(2) of the Citizenship Act provides that:

    The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 19C(2).

17. Section 19C(2) of the Citizenship Act, which sets out the eligibility requirements for Australian citizenship for persons who have been adopted overseas, is somewhat convoluted due to its cumulative components. It provides:

    (2)  A person (the applicant) is eligible to become an Australian citizen if:

    (a) the applicant is adopted in a Convention country or a prescribed overseas jurisdiction by:

    (i)    a person (the adopter) who is an Australian citizen at time of the adoption; or

    (ii)   2 persons jointly, only one of whom (the adopter) is an Australian citizen at the time of the adoption; or

    (iii)   2 persons jointly, both of whom (the adopters) are Australian citizens at the time of the adoption; and

    (b) an adoption compliance certificate issued in that country is in force for the adoption; and

    (c) under the Intercountry Adoption regulations or the Bilateral Arrangements regulations, as applicable, the adoption is recognised and effective for the laws of the Commonwealth and each State and Territory; and

    (d) the legal relationship between the applicant and the individuals who were, immediately before the adoption, the applicant's parents has been terminated; and

    (e) if subparagraph (a)(i) or (ii) applies and the adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption--the adopter satisfies subsection (3); and

    (f) if subparagraph (a)(iii) applies and each adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption--either or both of the adopters satisfy subsection (3); and

    (g) if the applicant is aged 18 or over at the time the applicant made the application--the Minister is satisfied that the applicant is of good character at the time of the Minister's decision on the application.

    (Original emphasis.)

    CONSIDERATION

    Were the Applicants adopted in a prescribed overseas jurisdiction?

18. Subsection 19C(2)(a) provides that a person is eligible to be an Australian citizen if they were “adopted in a Convention country or a prescribed overseas jurisdiction”.  

19. According to s 19C(4), “prescribed overseas jurisdiction” has the same meaning as in the Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998 (Cth) which lists the prescribed overseas jurisdictions in Schedule 1. However, there are only three countries mentioned in Schedule 1, and Fiji is not one of them. Consequently, the Applicants were not adopted in a prescribed overseas jurisdiction.  

    Were the Applicants adopted in a Convention country?

20. Subsection 19C(4) provides that a “Convention country” has the same meaning as in the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (IAR). In summary, regulations 3(1) and 4 of the IAR define a “Convention country” as a country mentioned in Schedule 2; or any other country for which the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention) has entered into force, (subject to provisos that do not apply to this application).

21. Fiji is not a country mentioned in Schedule 2 of the IAR. However, the Hague Convention entered into force in Fiji on 1 August 2012. Consequently, Fiji was, in fact, a Hague Convention country at the time of the Applicants’ adoptions in 2018, notwithstanding that there was no domestic legislation in force to implement the Hague Convention until the Adoption Act 2020 (Fiji) (see s 34).

    Were the adoptions under the Hague Convention?

    Adoption as adults

22. The Applicants were adopted as 20-year-old adults, and the IAR only applies to the adoption of a “child”. A “child” is defined in regulation 3(1) of the IAR as “an individual who is under 18 years”. Regulation 16(1) of the IAR provides:

    (1)  This regulation applies if:

    (a)   an adoption, by a person who is habitually resident in Australia, of a child who is habitually resident in a Convention country is granted in that country; and

    (b) an adoption compliance certificate issued in that country is in force for the adoption.

23. In the Applicants’ further submissions filed on 1 December 2021, N submitted that it was in the best interests of the Applicants to stay with their parents in Australia, citing the Convention on the Rights of the Child. I agree that, in a practical sense, it is likely to be in their best interests to remain with their parents in Australia, but unfortunately the convention is not applicable because the Applicants are now adults.

    Compliance certificates

24. Further, the evidence is that the Applicants’ adoptions were domestic adoptions in Fiji that did not involve the Australian authorities. This explains why there are no adoption compliance certificates. An adoption compliance certificate is required as one of the eligibility requirements of s 19C(2)(b) of the Citizenship Act. It shows that an adoption was facilitated under the Hague Convention, including that the adoption was agreed to by the relevant government departments (“Central Authorities”) in Australia and Fiji (article 17 and article 23(1) of the Hague Convention; regulation 19 of the IAR). As there are no adoption compliance certificates, that eligibility requirement in s 19C(2)(b) of the Citizenship Act is not satisfied.

25. I acknowledge that in her quest to keep her family together in Australia, N unsuccessfully attempted to obtain adoption compliance certificates but was told they could not be issued due to the adoptions being domestic adoptions in Fiji rather than Hague Convention adoptions.

26. N tried to remedy this by having the adoptions recognised in Australia. She obtained adoption orders from the Family Court of Western Australia and registered the Applicants’ adoptions with the Registry of Births, Deaths and Marriages. However, these registrations do not amount to adoption compliance certificates.  

    CONCLUSION

27. The Applicants do not meet the requirements of s 19C(2)(a) of the Citizenship Act because they were not adopted in a prescribed overseas jurisdiction and because their adoptions were not under the Hague Convention by virtue of the Applicants being adults at the time of their adoptions. Additionally, as the adoptions were domestic adoptions in Fiji, there are no adoption compliance certificates, meaning that s 19C(2)(b) of the Citizenship Act is also not satisfied.

28. Consequently, the Applicants cannot be approved as Australian citizens under s 19C(2) of the Citizenship Act.

    RECOMMENDATION

29. I respectfully request that the Respondent work cooperatively with the Applicants to ascertain suitable visa options for them to enable them to remain in Australia without having to return to Fiji so that the family can stay together.

30. The Applicants are young adults who are still reliant on their parents, and both parents are Australian citizens. I therefore respectfully request that any visa options relevant to family reunification are considered. At the hearing the family was obviously distressed at the prospect of separation, which I note has caused them significant anxiety over the past few years. In this regard, I note a letter from N’s general practitioner stating that her physical and mental health has suffered due to possible family separation.

31. Additionally, the Applicants are valued employees in hospitality, an industry that has suffered from staff shortages during the COVID-19 pandemic. This may provide an opportunity for a suitable visa to be granted to permit them to stay in Australia and for the family to remain together.   

    DECISION

32. The Reviewable Decisions for application 2019/1353 and application 2019/1357 are affirmed.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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Associate

Dated: 4 May 2022

Date of hearing:	29 October 2021
Date final submissions received:	13 December 2021
Representative for the Applicants:	Their mother
Representative for the Respondent:	Ms S Anicic, The Australian Government Solicitor