Kamara (Migration)

[2021] AATA 2837

Kamara (Migration) [2021] AATA 2837 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hawa Kamara

VISA APPLICANTS:  Ms Jennifer Karrow-Kamara
Ms Fatu Conteh
Ms Christiana Sesay
Ms Medrita Kumba Wahid

CASE NUMBER:  1825825

HOME AFFAIRS REFERENCE(S):          CLF2018/211491; CLF2018/357871; CLF2018/357872; CLF2018/357874

MEMBER:P. Maishman

DATE:24 June 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.211 of Schedule 2 to the Regulations; and

·cl 101.221(1) of Schedule 2 to the Regulations.

Statement made on 24 June 2021 at 2:54pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 – adoptive children of sponsor – review applicant is nominal family head – individual applicants not members of each other’s family unit – review applicant made a single application – tribunal has jurisdiction to review – at time of adoption sponsor not Australian citizen, holder of a permanent visa or eligible New Zealand citizen – evidence of adoption provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CA, 65

Migration Regulations 1994, rr 1.03, 4.12; Schedule 2, cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 28 June 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 10 February 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of Subclass 102 (Adoption) on the basis they were adopted by the sponsor, the review applicant.

3. The criteria for a Subclass 102 visa are set out in Part 102 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.102.211(2).

4. The delegate refused to grant the visas on the basis that cl.102.211(2)(b)(ii) was not met because the delegate was not satisfied the visa applicants were the adoptive children of the sponsor.

5. The review applicant appeared before the Tribunal on 8 March 2021 to give evidence and present arguments.

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

7. For the following reasons, the Tribunal has concluded that the matters should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Jurisdiction

8. Each of the visa applicants lodged individual visa applications and received individual decisions. The visa applicants in this application are not members of each other’s family unit other than by their claimed adoption by their sponsor, the review applicant.

9. The review applicant made a single application to the Tribunal for a review of the decisions affecting each of the visa applicants.

10. Each of the visa applicants, at the time of application, were children under the age of 18 years. The review applicant is the nominal family head of each of the visa applicants. The Tribunal adopts a broad view of r.4.12(4) to find the review applicant sponsor, for the purposes of determining the validity of the review application only, is a member of the family unit of the visa applicants.

11. The Tribunal is satisfied the review applicant sponsor may combine her applications for review by the Tribunal in respect of each of the visa applicants, members of her family unit, who have been refused a visa and the review application is valid.

12. The Tribunal has jurisdiction to review each of the applications as a combined application.

    Background

13. Each visa applicant is a citizen of Sierra Leone. Each visa applicant provided the Department a copy of their birth certificate confirming each of them had not turned 18 at the time of applications. There visa applications were made on the basis they were the adoptive children of the review applicant.

14. The review applicant completed a sponsorship form for each of the visa applications. She declared she was a permanent resident of Australia since 8 November 2016. She declared she was in a partner relationship with Philippa Kamara who was also a permanent resident of Australia at 8 November 2016.

    Evidence before the Tribunal

15. The Tribunal had before it a copy of each of the visa applicants’ Department files containing their visa applications, sponsorship forms and documents received by the Department in respect of the applications. Each of the applicants claimed to have been adopted by the review applicant.

16. The review applicant gave the Tribunal a copy of each of the delegate’s decision records with her application for review. The delegate found there was no evidence the visa applicants were formally adopted, or that the sponsor resided out of Australia for more than 12 months at the time of application.

17. On 28 February 2021 the Tribunal received a submission from the review applicant’s representative along with documentary evidence indexed as attachments 1 to 10. The submissions and the documents have been forwarded to the Department. Relevantly, Attachment 2 is an adoption Court Order from the High Court of Sierra Leone dated 2 August 2013.

18. The Tribunal found the review applicant to be forthright and candid in her oral evidence. The review applicant’s oral evidence is consistent with the documents before the Tribunal. The Tribunal finds the review applicant as a credible and honest witness. The Tribunal accepts the review applicant’s oral evidence on that basis.

19. The review applicant conceded the visa applicants did not meet the requirements of cl.102.211 of Schedule 2 of the Regulations, because at the time of adoption the review applicant was neither an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen.

20. The applicant asked the Tribunal to assess the visa applicants against the alternative Child (Migrant) (Class AH) visa criteria for Subclass 101 (Child).

    Have the applicants been adopted?

21. Regulation 1.04 defines when a person is taken to have been adopted 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.

22. Each of the visa applicants provided birth certificates confirming their ages. The Tribunal finds on the evidence neither of the visa applicants has attained the age of 18.

23. The Tribunal had regard to the declaration and testimony dated 10 July 2013 from the Ministry of Social Welfare, Gender and Children’s Affairs in Sierra Leone contained on the Department’s file. The document is signed by the Director of Children’s Affairs, the biological mother of the first and fourth named visa applicants and the biological fathers of the second and third named visa applicants. The document declares that each of the visa applicants have been dependent for support on the review applicant since they were born. The visa applicants resided with the review applicant’s husband since the review applicant’s departure to Australia. The review applicant’s husband provides care and protection with sponsorship from the review applicant while she is in Australia. The biological parent of each of the visa applicants consent to the visa applicants travel to Australia with the review applicant.

24. The Tribunal was concerned the Court Order for Adoption at Attachment 2 had not been provided to the Department with the visa applications. The review applicant explained she had commenced the adoption process prior to coming to Australia. For the adoption to proceed she was required to obtain the visa applicants parent’s consent. She included with the visa applications statements of parental consent and a declaration and testimony issued by the Ministry of Social Welfare, Gender and Children’s Affairs in Sierra Leone consenting to the visa applicants travelling to Australia to reside with her. She thought this was sufficient evidence to prove the children were adopted. Her husband remained in Sierra Leone looking after the children and she was represented in the adoption by her lawyer. When she received the visa refusal notifications saying there was no evidence the visa applicants were formally adopted her lawyer told her husband the court order was available at the High Court of Sierra Leone. Her husband obtained the document from the court and she received a copy of the court order sometime in 2018.

25. The Tribunal requested the Department on 9 March 2021 to authenticate the Adoption Court Order of the High Court of Sierra Leone dated 2 August 2013 and followed up that request on 8 April 2021. At the time of this decision the Tribunal has received no response from the Department authenticating the document, or indicating if, or when it may be able to authenticate the document.

26. The Tribunal acknowledges the difficulties endured by the Department caused by the impact internationally of the Covid-19 pandemic. Foreign posts are subject to local restrictions often inhibiting the ability of the Department to proceed with investigations promptly, if and when they are able.

27. The Tribunal’s concern with the document relates to the timing of the document being produced. The Tribunal considers the explanation by the review applicant and other evidence, such as the parental consents and declarations and testimony by the Ministry of Social Welfare, Gender and Children’s Affairs in Sierra Leone supports the veracity of the Court Order of the High Court of Sierra Leone dated 2 August 2013, contained at Attachment 2 of the submissions dated 28 February 2021. There is nothing before the Tribunal to suggest the document is not genuine. The Tribunal accepts that document at face value.

28. The Tribunal is satisfied the review applicant is the adopter and assumed a parental role in relation to the visa applicants under formal adoption arrangements in accordance with the law of Sierra Leone.

29. The Tribunal finds the visa applicants are taken to have been adopted by the review applicant as defined in r.1.04(1)(b) and that adoption formally took place on 3 August 2013.   

    Subclass 102 – Adoption visa

30. Clause 102.211(1) requires an applicant to meet the criterion in either of the subclauses (2), (3), (4) or (5).

31. Subclauses (2)(b) and (5)(b) require, relevantly, that at the time of application the applicant has been adopted by a person, who at the time of adoption, is an Australian Citizen, a holder of a permanent visa or an eligible New Zealand citizen. In the circumstances of an adoption that is in progress at the time of application, subclauses 3(c) and 4(c) require a prospective adoptive parent, or their spouse, to be an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen.       

32. The Tribunal accepts the Court Order of the High Court of Sierra Leone dated 2 August 2013 as evidence of the visa applicants’ formal adoption by the review applicant. The Tribunal finds the visa applicants were adopted overseas by the review applicant on 2 August 2013.

33. The review applicant submits that at the time of adoption she was in Australia and the holder of a temporary (subclass 457) visa. Departmental records confirm the review applicant was in Australia as the holder of a subclass 457 visa granted on 3 April 2013. The subclass 457 visa ceased on 8 November 2016.

34. There is no evidence before the Tribunal either the review applicant or her partner Philip Kamara were Australian citizens, the holders of a permanent visa or eligible New Zealand citizens.

35. On the evidence, the Tribunal finds the visa applicants were adopted on 2 August 2013 by the review applicant, who was not an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen when the adoption took place.

36. Accordingly, the requirements of cl.102.211(2)(b) and cl.102.211(5)(b) are not met.

37. Clauses 102.211(3) and (4) apply to adoptions that are in progress at the time of application. As the Tribunal has found adoption took place before the application cl.102.211(3) and cl.102.211(4) do not apply.

38. The applicant does not meet the requirements of subclauses (2), (3), (4) or (5) and the requirements of cl.102.211(1) are not met.

    Subclass 101 – Child visa

39. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.211.

    Dependent child criteria

40. The criterion in cl 101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

    Dependent child

41. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. ‘Child’ as defined in s.5CA includes a person who is an adopted child within the meaning of the Act. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

42. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

43. The Tribunal has found the visa applicants have been formally adopted by the review applicant. As such, the visa applicants are each a child of the review applicant as defined in s.5CA of the Act. 

44. The visa applicants each declared they are not engaged to be married and do not have a spouse or de facto partner at the time of application. The review applicant confirmed in her oral evidence none of the visa applicants are engaged to be married or has a spouse or de facto partner. There is no evidence before the Department to suggest either of the visa applicants are engaged to be married or have a spouse or de facto partner.  

45. The Tribunal finds the visa applicants were at the time of application, and at the time of this decision, dependent children of the review applicant.    

46. The visa applications were made on 17 February 2017, at which time the review applicant claimed to be a Permanent resident of Australia.  The Tribunal confirmed with records held by the Department that the review applicant was the holder of a subclass 190 visa on 17 February 2017. The Subclass 190 skilled nominated visa allows holders to work and live in Australia as Permanent residents. The Tribunal received a copy of the review applicant’s Australian Citizenship certificate showing she was granted citizenship on 2 October 2020.

47. The Tribunal finds at the time of application the review applicant was the holder of a permanent visa. At the time of the decision the review applicant is an Australian Citizen.

48. Accordingly, cl 101.211(1)(a) is met by each of the visa applicants at the time of application, and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

49. At the time of application, the visa applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl 101.211(1)(b), (2).

50. Birth certificates held on the Department’s files confirm none of the visa applicants had  turned 18 at the time of application. Neither of the visa applicant’s have yet turned 25 years old at the time of this decision.

51. The Tribunal finds the visa applicants have not turned 25.   

52. Accordingly, cl 101.211(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Child-parent relationship

53. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

54. The visa applicants were adopted overseas by the review applicant in August 2013. The review applicant was not at the time of adoption an Australian citizen, permanent visa holder, or eligible New Zealand citizen. The review applicant later became the hold of a permanent visa in November 2016 and subsequently an Australian citizen in October 2020.  

55. Accordingly, cl 101.211(1)(c)(ii) is met at the time of application, and continues to be met at the time of decision.

56. For the reasons above, the criteria in cl 101.211 and cl 101.221(1) are met.

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

    DECISION

58. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.211 of Schedule 2 to the Regulations; and

    ·cl 101.221(1) of Schedule 2 to the Regulations.

    P. Maishman
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    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.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …