Hodson (Migration)

[2023] AATA 2264

Hodson (Migration) [2023] AATA 2264 (23 May 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Master Harley Vaughan Hodson

REPRESENTATIVE:  Mr Christopher Hugh Levingston

CASE NUMBER:  2015461

HOME AFFAIRS REFERENCE(S):           CLF2020/31888

MEMBER:  Peter Emmerton

DATE:  23 May 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 23 May 2023 at 1:37pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an eligible person – existence of child-parent relationship – not biological parent – legal guardianship – adoption required – customary adoption – formal adoption available in Fiji – full and permanent parental rights not acquired – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CA, 65

Migration Regulations 1994 (Cth), r 1.04A; Schedule 2, cls 802.212, 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 5 October 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 17 July 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).

1. 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 802.212(1)(a). The delegate assessed that the visa applicant is not a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen.

1. The delegate refused to grant the visa on the basis that cl 802.212(1)(a). was not met because they assessed that the visa applicant is not a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen.

1. The applicant was represented by Mr Vaughan Robert Hodson who appeared before the Tribunal on 23 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Senimili Murivecena Hodson as well as Ms Siteri, (sponsor’s mother), Ms Mereia Vivuga, (the applicants birth mother and sponsor’s cousin).

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether or not the requirements of cl 802.212(1)(a) are met.

1. The Tribunal has read and considered the following documents presented to the Department and the delegate.

·Department refusal decision of 5 October 2020

·Photographs of Harley Vaughan Hodson (passport style)

·Passport scan of Harley Vaughan Hodson

·Fijian identification cards of Mereia Vivuga Legalega Nadi

·Passport scans of Vaughan Robert Hodson and Senimili Murivecena

·Consent Order of Magistrates Court (Western Division at Nadi), 15 June 2018

·Certificate of Marriage,Vaughan Robert Hodson and Senimili Murivecena, dated 20 November 2015

·National Police Certificate of Vaughan Robert Hodson

·National Police Certificate of Senimili Murivicena

·Birth Certificate of Vaughan Robert Hodson, extracted October 1991

·Statutory Declaration of Senimili Murivicena, dated 12 June 2020

·Department application forms

The Tribunal has read and considered the following documents presented to it prior to the hearing.

·Representative submission including MRT research, received 16 May 2023

·Statement by Senimili Murivicena, dated 22 May 2023

Adoption criteria

1. 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.

1. The applicant, Master Harley Vaughan Hodson was born on 7 March 2012 and at time of the application for this visa was 8 years of age. A Fijian Birth Certificate, registration number 1662611 for the applicant was provided, listing his biological mother as Mereia VIVUGA and no father listed. It has been noted that although the Birth Certificate provided indicates the applicant’s date of birth as (date provided) March 2012, was only subsequently registered, (date provided) in December 2015. The Tribunal accepts this as a not uncommon circumstance within the somewhat less bureaucratically formally constructed social norms existing in Fiji and accepts the Date of Birth (DOB) as stated.

1. The Form 47CH Part D, indicates the only parent of the applicant as Mereia Vivuga, the applicant’s mother, no father is indicated. According to testimony provided at the hearing his identity is unknown. The Sponsorship form 40CH indicates the sponsor’s relationship to the applicant as Court appointed Guardian. In Part G – Parental Responsibility, Mereia VIVIUGA is listed as Birth Mother and the only parent. The relevant documentation has been perused and accepted by the Tribunal and corroborated at the hearing.

1. A Consent Order from Family Division of the Magistrate’s Court in Nadi dated 15 June 2018 was provided stating that Vaughan Robert HODSON and Senimili MURIVECENA are due legal guardians of the child Harley Vaughan HODSON and are allowed to take the child out of jurisdiction and that Mereia VIVUGA has open access to the child.

1. Form 1229 Consent to grant an Australian visa to a child under the age of 18 years was provided with the application signed by Mereia VIVUGA as the parent and the person with parental responsibility. This was corroborated by the Guardians at the hearing under questioning.

1. The Tribunal must consider the requirements set out in clause 802.212. The applicant is required to demonstrate they are a dependent child of a person who is an Australian citizen, holder of a permanent resident or eligible New Zealand Citizen. To meet the definition of dependent child, the applicant needs to be a ‘child of a person’, as set out in Section 5CA.

1. Section 5CA(1)(a) requires the applicant to be a child of a person within the meaning of the Family Law Act 1975 (other than someone who has been adopted). As a birth certificate has been provided and it clearly states the biological mother as Mereia VIVUGA as the parent, the applicant does not meet this requirement.

1. The Tribunal acknowledges the written statement made by the applicant’s representative dated 17 may 2023 in it is stated ‘…..The current state of the evidence establishes that by reason of the Parties having entered into Consent Orders on or about 15 June 2018 ( copy above) they were appointed the legal guardians of the child.

   That fact is not disputed but clearly falls short of the legal definition of adoption.

What arises in this case and informs the legal position of the Applicant is that a “customary adoption” absent any specific constitutional or statutory prohibition is available to the Applicant for review............................ ’

1. Once again, the Tribunal notes this was not a claim made at the point of application and was only referred to in the most recent submission to the Tribunal. The Tribunal enquired why this was the case and it was explained by Mr Hodson that they had been advised by their representative last year, after the decision was handed down. The Tribunal does however concur with the assessment that the Court issued Consent Order falls short of the legal definition of adoption, it only enlivens legal guardianship.

Customary Adoption

1. The Tribunal has carefully considered the issue of customary adoption in the consideration it must comply with the requirements set out in Subregulation 1.04(2) in relation to a Child (Residence) (Class BT) visa and cl.802.213. The Tribunal acknowledges the range of reference material outlined by the applicant’s representative.

Subregulation 1.04(2)

1. A person is also taken to have been adopted by the adopter if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under other arrangements entered into outside Australia that, under subregulation 1.04(2), are taken to be in the nature of adoption, having regards to the following:

   (a)the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

(b)the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

(c)the Minister is satisfied that:

(i)formal adoption of the kind referred to in paragraph (1)(b):

(A)was not available under the law of the place where the arrangements were made; or

(B)was not reasonably practicable in the circumstances; and

1. (ii) the arrangements have not been contrived to circumvent Australian migration requirements.

Subregulation 1.04(2)(a)

1. The Tribunal has researched customary adoption practices and acknowledges the fact that customary adoption can and does take place in Fiji. However, there is very limited knowledge of this topic in related specifically to Fiji and the bulk of it refers to the entire Pacific Islands as a whole. No evidence had been presented to the Tribunal prior to the hearing that demonstrates the mother of the child has approved adoption, either formal or informal and it is noted that the Court Order preserves her right of access to her child whilst under the guardianship of the sponsor. However, she was clear in her statements to the Tribunal during the hearing that she wanted his Guardians to continue to care for him in Australia and be his adoptive parents. She stated that she was young when he was born,

   (20) and had a husband now and 2 children. No evidence was presented to the Tribunal that suggests such a course of preferred action was in dispute. The Tribunal finds some sympathy for all concerned in the current circumstances.

Subregulation 1.04(2)(b)

1. It is accepted that at the time of application and onwards the child-parent relationship between the visa applicant and the sponsor appears to be significantly close. It was however initially unable to definitively determine if it is significantly closer than any other such relationship between the visa applicant child and relatives or other persons such as their mother. However, under questioning during the hearing the Tribunal was easily convinced by all who testified, that the 2 Guardians are significantly closer than any other such relationship between the visa applicant child and relatives or other persons such as their birth mother.

Subregulation 1.04(2)(c)

1. The Tribunal again notes the sponsor is not a resident of Fiji and does not domicile in the country. It also notes that frequent trips have been made there since her original arrival on 17 October 2010, (10 in total). Formal adoption is clearly available under the law of the country, Fiji, where the customary adoption is claimed. No substantiated claim has been made to demonstrate that Formal adoption was not reasonably practicable in the circumstances of the case in question.

1. The Tribunal accepts that the Guardians were advised by their lawyer that the Court Order granted was an easier process than formal legal adoption. They claim to have been advised by a Fijian based lawyer that such an adoption undertaken in Fiji would not be accepted in Australia. This is at best questionable advice however the Tribunal believes it reasonable to accept this is as the Guardians understood it. The Tribunal notes that Fiji is a recognised senior member and leader of the Pacific Islands community with strong ties to Australia. Whilst it has had some periods of political turbulence it is a relatively successful young democracy with a substantial legal and judicial system. That system is accessible to its citizens.

1. The Tribunal questioned both the sponsor and her husband, (the joint Guardians), why adoption had not been sought after the delegate’s decision refusing the visa applicant’s visa in which the issue was clearly stated. Neither was able to provide an adequate answer and the Tribunal has concluded a lack of familiarity with the legal system is the most probable cause of the inaction.

1. The Tribunal has turned its mind as to whether the applicant’s claimed customary adoption has been contrived to circumvent Australian migration requirements rather than a natural process of providing the visa applicant with parental care in accordance with well- established and recognised traditional practice of the country of his origin.

1. The Tribunal has insufficient evidence placed before it to form the view that this claim of customary adoption has not been contrived to circumvent Australian migration requirements. It notes that formal adoption was a clearly available option in this instance, had the agreement of all relevant parties been sought and reached. The failure to access the path of formal adoption coupled with the fact that the claim of customary adoption was not raised at the time of the original application leads the Tribunal to conclude that this claim of customary adoption may have been contrived to circumvent Australian migration requirements.

1. The Tribunal has turned its mind as to whether the adoptive parent has lawfully acquired full and permanent parental rights by the claimed customary adoption. The forementioned Court Orders whilst giving the sponsor guardianship responsibilities it retains the rights of the biological mother, Mereia Vivuga to have open access to the child, the visa applicant. The Tribunal has concluded that the sponsor has not lawfully acquired full and permanent parental rights by the claimed customary adoption.

1. Accordingly, cl 802.213 is not met.

1. The Tribunal was asked to refer the matter to the Minister for consideration. This was refused however the Tribunal encouraged the sponsor and her husband to seek comprehensive legal advice on their future actions and further encouraged the representative to seek all avenues of resolution available in this matter, including seeking Ministerial Intervention if they considered it appropriate.

1. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

DECISION

1. 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.