Kaur (Migration)

[2022] AATA 2743

Kaur (Migration) [2022] AATA 2743 (8 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Samreen Kaur

CASE NUMBER:  1926710

HOME AFFAIRS REFERENCE(S):          CLF2018/356499

MEMBER:Mila Foster

DATE:8 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2022 at 4:05pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child by adoption – niece adopted by aunt and uncle – consent orders by Family Court and assumption of parental roles before application, but adoption order by Supreme Court after – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulation 1994 (Cth), rr 1.03, 1.04, Schedule 802.212(1)(a)

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 20 September 2019 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 15 October 2018. 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 802.212 which requires that the applicant is a dependent child of an Australian citizen, permanent resident or eligible New Zealand citizen, and is under 25 years of age or incapacitated for work.

4. The delegate refused to grant the visa on the basis that cl 802.212 was not met because neither of the applicant’s biological parents was an Australian permanent resident or eligible New Zealand citizen, and while it was claimed she had adoptive parents she had not been adopted within the meaning of the Regulations.

5. As the applicant is a young child her representative appeared before the Tribunal on 2 August 2022 to give evidence and present arguments on her behalf.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has before it the Department of Home Affairs file relating to the visa application as well as documents submitted to the Tribunal on behalf of the applicant prior to the hearing.

8. The issue in the present case is whether the applicant was adopted at the time of application.

   Summary of claims and evidence

9. The applicant was born in the United States of America (the US) and is the biological child of Sukhbir Singh and Navjot Kaur.[1] According to her birth certificate she is 7 years old. It is claimed that her biological parents are US citizens. According to the applicant’s passport she is a US national.[2]

   [1] Copy of birth certificate provided to Department.

   [2] Copy of expired passport provided to Department, copy of current passport provided on review. 

10. On 20 August 2018 consent orders were made by the Family Court of Australia that Manjinder Kaur and Satnam Singh would have equal shared parental responsibility of the applicant, the applicant would live with Manjinder Kaur and Satnam Singh and she would spend time with her parents as agreed to by her parents and Manjinder Kaur and Satnam Singh.[3]

    [3] Copy of document provided to Department.

11. It is claimed that Manjinder Kaur and Sukhbir Singh are siblings.

12. It is claimed that Manjinder Kaur and Satnam Singh are married to each other. At the time of application, Manjinder Kaur was an Australian permanent resident[4] and Satnam Singh was an Australian citizen by grant.[5]

    [4] Copy of visa grant notice provided to Department.

    [5] Copy of Australian passport provided to Department.

13. On 21 October 2019 the Supreme Court of New South Wales made an order pursuant to the Adoption Act 2000 (NSW) for the adoption of the applicant in favour of Manjinder Kaur and Satnam Singh.[6] On 8 November 2019 a New South Wales birth certificate was issued which states that Manjinder Kaur and Satnam Singh are the applicant’s parents.

    [6] Copy of document provided on review.

    Dependent child criteria

14. 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).

15. ‘Dependent child’ is defined in reg 1.03 of the Regulations. Essentially, ‘dependent child’ of a person means the child or step-child of the person who is not engaged or partnered and, if they are 18 or older, are 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.

16. ‘Child’ is defined in s 5CA of the Act and includes an adopted child within the meaning of the Act. ‘Adoption’ is defined in reg 1.04 of the Regulations. The key requirements contained in reg 1.04 are:

    ·the adopter must have assumed a parental role in relation to the adoptee;

    ·the role must be assumed before the adoptee attained 18 years of age;

    ·the role must be assumed under certain arrangements, namely:

    -formal adoption arrangements under Australian (or state/territory) law;

    -formal adoption arrangements under foreign law, where the adoption results in the legal recognition of the adopter(s) as the parent(s), in place of the previously recognised parents; or

    -certain other arrangements entered into outside Australia that are ‘in the nature of adoption’ (referred to as ‘customary adoption’).

17. The visa application was made on behalf of the applicant on the basis that she was the adopted child of Manjinder Kaur and Satnam Singh.

18. The evidence before the Tribunal indicates that at the time of application Manjinder Kaur and Satnam Singh had assumed equal parental roles in relation to the applicant pursuant to the consent orders made by the Family Court of Australia on 20 August 2018 but had not adopted the applicant until after the time of application pursuant to the adoption order made by the Supreme Court of New South Wales on 21 October 2019. When the Tribunal put this to the applicant’s representative at the hearing, this was not disputed. It was not claimed nor is there evidence before the Tribunal that at the time of application either Manjinder Kaur or Satnam Singh had assumed a parental role in relation to the applicant under any of the three arrangements in reg 1.04 – formal adoption arrangements under Australian law, formal adoption arrangements under foreign law or in accordance with customary adoption.

19. Therefore, the Tribunal finds on the evidence before it that at the time the visa application was made the applicant had not been adopted by Manjinder Kaur or Satnam Singh within the meaning of adoption in reg 1.04. The applicant was thus not their ‘child’ within the meaning of s 5CA and hence not the dependent child of an eligible person at the time of application.

20. Accordingly, the requirements of cl 802.212 (1)(a) are not met and hence cl 802.212 is not satisfied.

    Conclusion

21. The criteria for the grant of a Subclass 802 visa are not met and there have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

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

    Mila Foster
    Member