Kalu (Migration)

[2021] AATA 2953

Kalu (Migration) [2021] AATA 2953 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr William Kalu

CASE NUMBER:  1802050

HOME AFFAIRS REFERENCE(S):          CLF2017/15462

MEMBER:David Crawshay

DATE:28 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2021 at 12:09pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an eligible person – adopted child – adoption not made in accordance with the laws of Australia – no permanent parental rights – customary adoption – whether formal adoption reasonably practicable in the circumstances – closeness of the child-parent relationship – step-child – strong compassionate circumstances – serious, ongoing and irreversible harm – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.04; Schedule 2, cls 802.212, 802.213, 802.214

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 10 January 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 February 2017. 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 (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 relating to a “dependent child”, cl.802.213 relating to adoption and cl.802.214 relating to additional criteria to be met by people who have turned 18.

4. The delegate refused to grant the visa on the basis that cl.802.212, cl.802.213 and cl.802.214 were not met. In terms of cl.802.212, the delegate found that the applicant was not the “dependent child” of the sponsor as defined in s.5CA of the Act and with regard to the definition of “adoption” in r.1.04 of the Regulations. In terms of cl.802.213, the delegate found that the applicant did not satisfy the various subcriteria related to adoption. In terms of cl.802.214, the delegate found that the applicant was not studying at the time of application.

5. The applicant appeared before the Tribunal on 15 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Ian Strachan, and from the applicant’s mother, Ms Linda Strachan. The applicant and sponsor will hereon be collectively referred to as “the parties”. The hearing was held remotely by Microsoft Teams video as a joint hearing with Mr D’lawa Junior Kalu, the applicant’s brother, as the other applicant. A decision in relation to his application for review has been made separately.

6. The applicant was represented in relation to the review by his registered migration agent.

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 the applicant satisfies the requirements of cl.802.212 relating to a dependent child.

   Dependent child criteria

9. Clause 802.212 provides as follows:

   (1)   The applicant:

   (a)is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

   (b)subject to subclause (2), has not turned 25.

   (1A) If the applicant is a step-child of the person mentioned in paragraph (1)(a), the
        applicant is a step-child within the meaning of paragraph (b) of the definition of
        step-child.

   (2)   Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

   [emphasis in original]

10. At the time of application, the applicant must be a “dependent child” of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). “Dependent child” is defined in r.1.03 of the Regulations as follows:

    "dependent child " , of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)   has not turned 18; or

    (b)   has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions.

    [emphasis in original]

    Dependent child

11. The Tribunal has considered if the applicant satisfies the requirements of dependent child under cl.802.212(1). To do this, it has considered the definition of “child of a person” in s.5CA of the Act, which states as follows:

    (1)   Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b)someone who is an adopted child of the person within the meaning of this Act.

    (2)   The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3)   Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

    [emphasis in original]

12. The Tribunal has considered that the applicant claims to be subject to an adoption. If true, this would mean that he is unable to meet s.5CA(1)(a) as there is a specific exclusion for a person who is an adopted child of another person within the meaning of the Family Law Act. For present purposes, the Tribunal has assessed him against the criteria relevant to adopted children under s.5CA(1)(b) although it will assess him against the criteria relevant to step-children below.

    Adopted child

13. Section 5CA(1)(b) deals with the case of someone who is an adopted child of the person.

14. Under r1.04, “adoption” is defined as follows:

    (1)   A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    (a)   formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

    (b)   formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

    (c)   other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2)   For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

    (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

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

    [emphasis in original]

15. At hearing, the Tribunal heard from the sponsor that the parties do not contend that the claimed adoption was not made in accordance with the laws of Australia. Based on evidence showing that the applicant claims to have been adopted according to the laws of Papua New Guinea, including a “Certificate of customary adoption” dated 11 October 2012 (adoption certificate) and associated court order issued by the District Court of Tabubil, Western Province (refer Department folios 61-63), the Tribunal finds that the applicant does not satisfy r.1.04(1)(a) as he was not adopted in accordance with the laws of an Australian state or territory.

16. In relation to r.1.04(1)(b), the Tribunal put its concerns to the parties at hearing that the adoption certificate gives rights of access and return to the applicant’s biological father and therefore the latter did not cease to be recognised as a parent of the applicant. It put its concerns that the effect of this was that the adoption certificate did not give permanent parental rights to the adopter. The applicant’s representative conceded this point at hearing. Based on the evidence including the adoption certificate dated 11 October 2012, the Tribunal finds that the applicant does not satisfy r.1.04(1)(b).

17. Subregulation 1.04(1)(c) relates to customary adoption arrangements. In this regard, every one of the cumulative requirements of r.1.04(2)(a), r.1.04(2)(b) and r.1.04(2)(c) must be satisfied.

18. At hearing, the Tribunal heard from the sponsor and Ms Strachan about the process involved in the applicant’s claimed adoption. The sponsor said that he and Ms Strachan were married in New Zealand. They were advised of the adoption process through the magistrate of the local court of Western Province where they lived. The sponsor said that his understanding was that the magistrate is appointed and recognised by the Supreme Court of PNG.

19. Ms Strachan told the Tribunal that the PNG legal system recognises customary adoption. She said that they sought customary adoption and then went to a provincial court and the court approved the customary adoption papers for them. She said that it someone opposed the adoption, then she and the sponsor would have gone to the national court. She said that the company for whom the sponsor worked required there to be a legal adoption so that they would recognise the applicant as the sponsor’s child.

20. The sponsor confirmed that these steps took place – he said that they went through a customary adoption process and then went through a “formal” process. He said that the customary adoption took place in 2011 and the application to court in 2012. Based on the available evidence, the Tribunal is satisfied that this “formal” process was the process to have the customary adoption approved by the magistrates’ or provincial court under s.54(1) of the Adoption of Children Act (PNG) and not, in fact, formal adoption via an adoption order pursuant to Part III and in particular s.6 of that Act.

21. The Tribunal put its concerns that formal adoption of the type under r.1.04(1)(b) was available by virtue of the Adoption of Children Act (PNG). It also put its concerns that it had little evidence to demonstrate that it would not have been reasonably practicable in the circumstances to not undertake formal adoption.

22. Ms Strachan said that she and the sponsor were living near a mine site four hours from Port Moresby where they were both working. She said that the sponsor’s employer wanted something that legally said that the sponsor was the father of the applicant because they wanted to live together as a family. She said that the magistrate considered the adoption to be legal so they did not pursue going to Port Moresby, which would be difficult with young children. She said that they had sought legal advice to say that the steps they had taken were sufficient.

23. At this point in the hearing, Mr D’lawa Junior Kalu told the Tribunal that the place where the sponsor and Ms Strachan lived is a small town only accessible by aeroplane. He said that to go into Port Moresby would have been expensive and would have taken the sponsor and Ms Strachan off work. He said that this did not leave them “any other avenues”.

24. Post-hearing, the representative provided the Tribunal with submissions which relevantly stated as follows:

    The Applicants submit that the formal adoption in PNG was not, at the time, reasonably practicable in the circumstances, given that the adopter and adoptees were living in the remote rural area of PNG, which was approximately four (4) to eight (8) hours away from a metropolitan city in PNG.

25. In relation to r.1.04(2)(c)(i)(A), the Tribunal is aware that customary adoption is recognised by Part IV of the Adoption of Children Act (PNG): s.53. However, and as it put to the parties at hearing, it is also aware that the Adoption of Children Act (PNG) provides for formal adoption. Consequently, the Tribunal finds that r.1.04(2)(c)(i)(A) is not met.

26. In relation to r.1.04(2)(c)(i)(B), the Tribunal has had regard to the evidence in front of it, including the testimony of the parties, Ms Strachan and Mr D’lawa Junior Kalu at hearing and post-hearing submissions and evidence provided by the applicant’s representative. Having considered this information, it finds that while the circumstances of the parties and of Ms Strachan may have been such that undertaking a formal adoption was difficult, involving some travel and expense, and requiring the sponsor and Ms Strachan to be away from work, it was nonetheless reasonably practicable for them to do so given their own personal circumstances. In terms of travel, the evidence demonstrates that at the time of the customary adoption and certification of that adoption in 2011 and 2012, the applicant was attending boarding school in Lae and away from where the sponsor and Ms Strachan were living in Tabulil. At hearing, Ms Strachan told the Tribunal that the sponsor flew into Lae to visit the applicant. In an earlier letter dated 11 September 2017 in the applicant’s Department file, Mr D’lawa Junior Kalu stated that he and the applicant would visit the sponsor and Ms Strachan at their home in Tabulil during school holidays. From this evidence, the Tribunal finds that undertaking travel across PNG did not appear to be uncommon for the parties. In relation to the inconvenience of taking time off from work, the Tribunal again points to evidence of the sponsor travelling to Lae to visit the applicant at his boarding school. Lastly, and regarding the expense of travelling to Port Moresby or to some other centre to seek formal adoption, the evidence is that the sponsor has been rendering significant financial support to the applicant over the years and therefore appears to have the means to pay for expenses associated with a formal adoption including travel.

27. The Tribunal finds that r.1.04(2)(c)(i)(B) is not met as it is not satisfied that adoption was not reasonably practicable in the circumstances.

28. As neither r.1.04(2)(c)(i)(A) or r.1.04(2)(c)(i)(B) is met, r.1.04(2)(c)(i) is not met. As r.1.04(2)(c)(i) is a cumulative requirement of r.1.04(2)(c), r.1.04(2)(c) is not met.

29. Although it is not necessary to do so because of its findings in relation to r.1.04(2)(c), the Tribunal has considered whether the child-parent relationship between the applicant and the sponsor is significantly closer than any such relationship between the applicant and any other person: r.1.04(2)(b). It has had regard to the nature and duration of the arrangements in doing so.

30. At hearing, Ms Strachan told the Tribunal that when she separated from the applicant’s biological father, the applicant lived with her. She said that when she and the sponsor met, he had to go to the village to meet with the family members of Ms Strachan and had to go to Lae to meet the applicant at his boarding school. She said that the sponsor has been closer to the applicant than his biological father.

31. The Tribunal at one stage heard from the applicant’s representative who advanced an oral submission that the sponsor has a significantly closer relationship to the applicant than does Ms Strachan. He told the Tribunal that while Ms Strachan’s relationship with the applicant was more emotional, the sponsor’s relationship involved shelter, financial support and emotional support. The Tribunal expressed some concern about this submission given that Ms Strachan was the applicant’s biological mother.

32. The post-hearing materials submitted by the applicant’s representative included a number of documents which purported to show that the sponsor had paid significant sums of money in relation to the applicant’s expenses from 2014 through to 2020, including at the time of application. The Tribunal accepts that the sponsor has contributed significantly to the applicant’s expenses, including living expenses. The representative’s submissions stated as follows in relation to this point:

    [T]he Applicants contend that the child-parent relationship between the adoptees and the adopter is in fact exclusive and importantly significantly closer than any such relationship between the adoptees and any other person or persons, including that of the child-parent relationship between the adoptees and their biological mother. The foregoing contention is largely premised on the fact that the adopter provides the adoptees with financial support for their daily living expenses, shelter and education.

33. The Tribunal has considered the representative’s submissions in this regard. It has considered that the sponsor has been a figure of support in the applicant’s life since 2011, especially in terms of financial support. However, and on the other hand, the evidence suggests that Ms Strachan has provided maternal support to the applicant since he was born in 1997, including physical, emotional and financial support. In particular, among the emails provided post-hearing was an email from the sponsor to Mr D’lawa Junior Kalu dated
    28 February 2017 (that is, around the date of application) that relevantly provided as follows:

    I promised you and Willy I would look after our family – so far that hasn’t been a real hard job, Mummy is the one to thank as she continues to be our glue that binds us together.

34. The Tribunal finds that this email amply demonstrates the active role that Ms Strachan has in the applicant’s life as his biological mother. Other emails from that time and from earlier and later show that Ms Strachan is an active part of the decision-making processes involving the applicant and Mr D’lawa Junior Kalu. It does not accept that the financial assistance rendered by the sponsor, as significant as it is, as well as the emotional support he offers, is sufficient to sustain a finding that the child-parent relationship between the applicant and the sponsor was significantly closer than the child-parent relationship between the applicant and Ms Strachan at the time of application. To do so would be to elevate financial support above other types of support such as physical and emotional that Ms Strachan was giving to the applicant as his biological mother and, by all accounts, an integral part of the applicant’s family. It finds that r.1.04(2)(b) is not met.

35. As r.1.04(2)(a), r.1.04(2)(b) and r.1.04(2)(c) are cumulative requirements that must all be met, the Tribunal is not satisfied that r.1.04(2) is met. Because r.1.04(2) is not met, r.1.04(1)(c) is not met.

1. As none of the alternative requirements under r.1.04 is met, the applicant does not satisfy the meaning of “adoption” and is not taken to have been an adopted child of the sponsor.

2. Because r.1.04 is not met, r.5CA(1)(b) is not met by the applicant. As r.5CA(2) and r.5CA(3) limit the definition of “child of a person” and do not expand it, they have not been considered.

3. The Tribunal finds that the applicant is not the adopted child of the sponsor.

   Step-child

4. The Tribunal has considered whether the applicant is a step-child of the sponsor. Under r.1.03, “step-child” is defined as follows:

   "step-child", in relation to a parent, means:

   (a)   a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or

   (b)   a person who is not the child of the parent but:

   (i)who is the child of the parent's former spouse or former de facto partner; and

   (ii)who has not turned 18; and

   (iii)in relation to whom the parent has:

   (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

   (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

5. If the applicant is to be found to be a step-child of the sponsor in cl.802.212(1), the applicant must be a step-child within the meaning of “step-child” in r.1.03(b): cl.802.212(1A).

6. At hearing, the Tribunal put to the applicant its concern that he applied for the visa after he had turned 18. The applicant’s representative conceded that this was the case. In post-hearing submissions, the representative stated that the applicant does not contend that he is a step-child for the purposes of r.1.03 of the Regulation.

7. As the applicant had turned 18 at the time of application, which is the time at which the applicant is required to be assessed, the applicant does not satisfy r.1.03(b)(ii). Because one of the cumulative requirements of r.1.03(b) is not met by the applicant, he does not satisfy cl.802.212(1A).

8. Accordingly, cl.802.212(1)(a) is not met at the time of application and therefore cl.802.212 is not met.

9. 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).

   MINISTERIAL INTERVENTION

10. The applicant’s representative asked the Tribunal to refer the applicant’s matter to the minister for his intervention.

11. Section 351 of the Act provides that the minister can substitute for a decision of a review tribunal a decision that is more favourable to a person if he thinks it is in the public interest to do so. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred to the minister for possible consideration of the use of his intervention powers.

12. The applicant’s representative told the Tribunal at hearing that there is no one in PNG who would be able to support the applicant financially as there was in Australia. He said that the applicant has no living relatives in PNG, his biological father having passed away. He said that the applicant has another sibling, a daughter, who had been granted a child visa because she was under 18 at the time of application. Elsewhere, Ms Strachan told the Tribunal that she and her daughter were in the final stages of being granted Australian citizenship.

13. In his post-hearing submissions, the representative provided as follows in relation to ministerial intervention:

    a.The Applicants’ family unit, is inclusive of Mr Strachan, Mrs Linda Strachan and their younger sibling will face emotional, financial and physical harm if the Applicants are not allowed to remain in Australia;

    b.The Applicants will face difficulties to resettle overseas, notably PNG due to not having any familiar relations or formal family support in PNG;

    c.The Applicants do not have any living relatives in PNG, as they are estranged from the biological father’s family (the biological father is deceased);

    d.The Applicants wholly rely on Mr Strachan (adopted parent) for emotional, physical and financial support, which is greater than anyone else;

    e.The Applicants’ adopted father Mr Strachan is an Australian citizen.

    f.The Applicants’ mother, Mrs Linda Strachan and other sibling reside in Australia and are Australian permanent Residents;

    g.The Applicants will be an asset to the Australian community, as they are both highly educated and will provide benefit to the Australian community as a whole:

    i.William is currently enrolled in the Bachelor of Laws program at Griffith University;

    ii.D’lawa has qualified and completed his education as a commercial pilot.

    h.If the Applicants are not allowed to remain in Australia, the Applicants family unit inclusive of Mr Strachan, Mrs Linda Strachan and their younger sibling will face the following harm and detriment:

    i.Financial Hardship, as they will be required to provide financial support to the Applicants from Australia;

    ii.Emotional and mental harm, as the matter has enormously affected Mrs Linda Strachan’s mental health;

    iii.(Physical Hardship) The Separation from the Applicants and their younger sibling who continues to form a relationship with her older siblings, will be extremely detrimental to her upbringing. The Applicants’ separation from their parents, Mr Strachan and Mrs Linda Strachan would be extremely detrimental for their ongoing relationship.

14. The representative provided documents to support these submissions, and these include evidence showing the significant financial support given to the applicant along with correspondence between the parties, Ms Strachan and Mr D’lawa Junior Kalu via email and social media and a timeline of events.

15. The Tribunal has considered this evidence, as well as other evidence on the Department and Tribunal files and the testimony of the parties, Ms Strachan and Mr D’lawa Junior Kalu against the minister’s guidelines when coming to a decision about whether to make a referral to him for intervention under s.351.

16. The Tribunal acknowledges the situation facing the applicant and his family, who are an Australian family unit where the sponsor is a citizen and Ms Strachan and his sister are permanent residents (who are also in the latter stages of becoming Australian citizens). It finds that this very close family unit would be broken up by the applicant (and his brother) being forced to return to PNG. It finds in particular that the applicant’s younger sister would suffer from not having the applicant in Australia during some of the most important formative years of her life and it believes this should not be understated. It notes the submission of the representative that Ms Strachan’s mental health has suffered through the duration of this matter, although it has not seen other evidence to support this. In any case, it accepts that there would be a high level of emotional hardship experienced by her if the applicant were not allowed to stay in Australia.

17. The Tribunal believes the circumstances described are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’s family unit. As such, it will be referring the matter to the minister for his determination under s.351 of the Act.

    DECISION

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

    David Crawshay
    Member