Gordon (Migration)

[2023] AATA 1680

Gordon (Migration) [2023] AATA 1680 (1 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Keiko Jireh Ramos Gordon

REPRESENTATIVE:  Mr John Anthony Hourigan (MARN: 0000377)

CASE NUMBER:  2116992

HOME AFFAIRS REFERENCE(S):          CLF2020/80959

MEMBER:Peter Emmerton

DATE:1 June 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 01 June 2023 at 3:24pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adoptive parent residing overseas for 12 months – adoption approved by an Australian central authority – compassionate or compelling circumstances – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.213, 802.216, 802.226

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 17 November 2021 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 27 October 2020. 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(2).

4. The delegate refused to grant the visa on the basis that cl 802.213(2) was not met because neither adoptive parent had been residing overseas for more than 12 months prior to the adoption, therefore the applicant does not meet subclause (5)(b)(i).

5. The applicant did not appear before the Tribunal and the Decision has been decided upon the papers at the written request of the applicant to waive their right to a hearing received by the AAT on 22 May 2023.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether or not the requirements of cl 802.213(2) are satisfied.

   Adoption criteria

9. 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.

10. The applicant was born on 3 December 2003 as evidenced by a copy of her Birth Certificate viewed by the Tribunal and provided with the application.

11. The Tribunal notes that on 5 October 2021 the Department wrote to the applicant and requested the following information:

    ‘Evidence of the circumstances surrounding the adoption

    Evidence your adoption was in accordance with the Adoption Convention and an adoption
    compliance certificate is in force in relation to the adoption.

    Or

    Evidence a competent authority in Australia approved one of the adoptive parents as a
    suitable adoptive parent prior to the adoption.

    Or

    Provide evidence that when the adoption took place, an adoptive parent had been residing
    overseas for more than 12 months. Evidence can include rental agreements, purchase of
    property, car, evidence of overseas employment, bank statements, receipts etc.

    Please also explain your reason for residing overseas and your future intentions.

    Note – If an adoptive parent was not living overseas for 12 months prior to the adoption,
    please provide a statement and any supporting evidence, detailing the reasons. This
    statement should include the following information:

    ● The reasons why the adoptive parent was not residing overseas during this period,
    including compelling or compassionate circumstances that prevented them from
    residing overseas during this period

    ● The circumstances surrounding the adoption (history/reasons etc)

    ● Why the adoption was not pursued from within Australia

    ● Any other compelling or compassionate circumstances that apply to your adoption.

    On 1 November 2021, a response was received to the request which stated ….

    ‘Mrs Gordon is unable to provide the requested documentation in relation to the adoption.
    The passport photo is attached. Please move to decision so we can move to the next stage of the process.’

    Consideration of clause 802.213

    Sub-clause 802.213(1)

12. This requires the applicant to be adopted by an Australian citizen, Australian Permanent Resident or an Eligible New Zealand citizen, be under the age of 18 at the time of the adoption and meet subclause (2), (3), (4), or (5).

13. The applicant was adopted by an Australian citizen and was under the age of 18 at the time of the adoption, as verified by the relevant documentation provide to both the delegate and the Tribunal. This is not in dispute.

    Sub-clause 802.213(2)

14. This requires the adoption to have been in accordance with the Hague Adoption Convention and for an Adoption Compliance Certificate to have been issued. As the adoption papers do not reflect the requirements stipulated and no Adoption Compliance Certificate has been issued, the applicant does not meet this requirement.

    Sub-clause 802.213(3)

15. This covers cases where a child was adopted by a person who became an Australian citizen, permanent resident or eligible New Zealand citizen only after the adoption. Identification documents coupled with the adoption documentation provided to the Tribunal clearly indicate that the applicant’s adoptive parents were Australian citizens at the time the applicant was adopted, therefore, the applicant does not meet this requirement.

    Sub-clause 802.213(4)

16. This applies where the adoptive parent was approved by an Australian State/Territory central authority before the adoption took place. As the applicant’s adoption was not approved by an Australian State/Territory central authority before the adoption took place, the applicant does not meet this requirement.

    Sub-clause 802.213(5)

17. The Tribunal is satisfied and acknowledges that the applicant was adopted overseas and that the adoptive parents were Australian citizens at the time of adoption and therefore meet sub-clause (5)(a).

18. However, the Tribunal is not satisfied that an adoptive parent was residing overseas for more than 12 months at the time of the adoption. The sponsor declared in the Form 40CH – Sponsorship for a child to migrate to Australia that she had resided in Australia from April 2009 until the present time. This was verified by reference to Departmental records and is accepted by the Tribunal as fact.

19. As neither adoptive parent had not been residing overseas for more than 12 months prior to the adoption, the applicant does not meet subclause (5)(b)(i).

    802.213(5)(b)(ii) - waiver provision

20. The requirement for one or both of the adoptive parents to be residing overseas for 12 months at the time of the adoption can be waived on compelling or compassionate grounds.

21. No evidence was provided to the delegate by the sponsor that indicates a request for a waiver of the requirement for an adoptive parent to have been residing overseas for the 12 months prior to the adoption because of compelling or compassionate circumstances.

22. At the time of this decision no evidence by the sponsor that indicates a request for a waiver of the requirement for an adoptive parent to have been residing overseas for the 12 months prior to the adoption because of compelling or compassionate circumstances has been provided to the Tribunal.

23. The applicant does not meet sub-clauses 802.213(2), (3), (4), or (5). Subsequently the applicant does not meet clause 802.213.

24. Accordingly, cl 802.213 is not met.

    DECISION

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

    Peter Emmerton
    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.