Kelleher (Migration)

[2019] AATA 3820

Kelleher (Migration) [2019] AATA 3820 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master James Lee Kelleher

CASE NUMBER:  1825597

DIBP REFERENCE(S):  CLF2017/55707

MEMBER:Hugh Sanderson

DATE:1 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 August 2019 at 8:09am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan relative) – section 48 bar – no change in circumstances – unique and exceptional circumstances – customary adoption in accordance with the laws of Papua New Guinea – availability and practicality of formal adoption – bureaucratic delays – significant threats to welfare and safety – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), r 1.04; Schedule 2, cl 837.211

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 Immigration on 14 August 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 1 August 2017. At that time, Class BT contained two subclasses: Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have been made in respect of the Subclass 837 visa. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa because the applicant did not meet cl.837.211 of Schedule 2 to the Regulations because the delegate found that at the time of the application the applicant did not hold a substantive visa and had previously had a visa refused since his last entry to Australia.

   Background

4. The applicant was born in Papua New Guinea and is currently 15 years old. His birth parents were declared to be Tony Baku and Janet Sevese. Mr Baku denied paternity of the applicant. He has had no involvement in the life of the applicant and the applicant and his family do not know his current whereabouts or if he is still alive.

5. The applicant was adopted by Damien Kelleher and his wife, Tricia Kelleher, on 22 November 2004 under the Adoption of Children (Customary Adoption) Ordinance 1969 (PNG) in the Tabubil District Court, Western Province, Papua New Guinea. A copy of the Certificate as to Adoption has been provided by the applicant to the Department. At the time of the adoption, Mr and Mrs Kelleher were employed in Papua New Guinea by Ok Tedi Mining Ltd. A Certificate of Birth was issued by the Papua New Guinea authorities for the applicant on 10 February 2005 naming Mr and Mrs Kelleher as his father and mother.

6. The biological mother of the applicant died on 8 September 2006 when the applicant was two years old. A copy of her Medical Certificate of Death has been provided to the Department.

7. The applicant has made multiple trips to Australia since 2005 holding a Tourist visa. He last entered Australia on 23 March 2012 holding a Subclass 571 Student visa. His last Student visa expired on 27 August 2014. The applicant was then granted a series of onshore Subclass 600 Visitor visas, the last one expiring on 10 August 2016.

8. The applicant applied for a Subclass 802 Child visa on 8 August 2016. That application was refused by the Department on 19 July 2017. The applicant did not seek a review of that decision. The reason that application was refused by the Department was as follows:

   ·While the ‘Certificate as to Adoption’ stated it was permanent, a limitation and condition of the adoption gave rights of access and return “only to the birth mother and family”;

   ·As the adoption did not sever all legal ties between the applicant and his birth mother (and family) the delegate was not satisfied the customary adoption was recognised under r.1.04(1)(b);

   ·To be recognised as a customary adoption in r.1.04(1)(c), formal adoption must not be available under the law of the place where the arrangements were made; and

   ·As formal adoption was available and practicable in Papua New Guinea, the applicant did not meet the requirements of r.1.04(2)(c) to be considered a customary adoption.

9. The current application was applied for on 1 August 2017. The Department wrote to the applicant on 10 April 2018. It was noted the applicant had, since he last arrived in Australia, had a visa application refused and had not become a dependent child of the sponsor since last applying for a substantive visa. Accordingly, it appeared the applicant did not meet s.48 of the Act and therefore did not satisfy the criteria in cl.837.211. The applicant’s sponsor responded to this information, but did not address the issue raised by the Department.

10. The delegate who considered the application made the following comments:

    At the time this application was lodged the applicant held a bridging visa and had not departed Australia since the decision to refuse the previous visa was made. Therefore section 48 of the Act applies to the applicant.

    As section 48 of the Act applies to the applicant, he is required to meet the requirements of clause 837.211. Clause 837.211 requires the applicant to have become a dependent child of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand Citizen since he last applied for a substantive visa.

    The applicant’s last application for a substantive visa was the application for a Child (Residence) (Class BT) visa which was lodged on 8 August 2016. This previous application was lodged on the basis the applicant was a dependent child of the sponsor, Damian Lee Kelleher. In this current application the applicant is claiming he is a dependent child of the sponsor, Damian Lee Kelleher. On this basis the applicant is claiming he was already a dependent child of the sponsor when he last applied for a visa.

    Therefore, as the applicant is claiming he was already a dependent child of the sponsor (an Australian citizen) prior to lodging his last Child (Residence) (Class BT) application, he does not meet clause 837.211.

11. Accordingly, the delegate issued a decision on 14 August 2018 refusing the application.

12. The applicant appeared before the Tribunal on 29 July 2019 to give evidence and present arguments. The applicant’s adoptive parents and sister also attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is able to proceed with the application despite the provisions of s.48 of the Act and the criteria in cl.837.211. These provisions are set out in the attachment to this decision.

15. The applicant previously applied for a Subclass 802 Child (Class BT) visa. This application was refused by the Department on 19 July 2017. The current application is for a Subclass 837 Orphan Relative (Class BT) visa. As the applicant does not currently hold a substantive visa and as he has not departed Australia since the decision to refuse the previous visa was made he is subject to s.48 of the Act.

16. No claim has been made that since last applying for the Subclass 802 Child (Class BT) visa the circumstances of the applicant have changed at all. He remains being cared for by Mr and Mrs Kelleher who went through the process to customarily adopt him in 2004. His biological mother died in 2006. As there has been no change in the circumstances of the applicant to meet the definition of an orphan relative, he does not meet the criteria in cl.837.211.

17. Accordingly, the Tribunal finds that cl.837.211 is not met. If the applicant had applied for a further Subclass 802 Child visa, he would not meet the criteria in cl.802.211 for the same reasons.

18. The Tribunal notes that to meet the criteria for the grant of a Subclass 837 Orphan Relative visa he must be sponsored by a relative. The Department previously found that the sponsor of the applicant had not adopted him in accordance with r.1.04. The sponsor would not then be considered a relative of the applicant. It is likely that the applicant would not meet the criteria in cl.837.212 that he is sponsored by an Australian relative.

19. For the above reasons the applicant does not meet the criteria for the grant of the visa and the decision of the Department to refuse the application must be affirmed.

    Ministerial intervention

20. Although the Tribunal finds that the applicant does not meet the criteria for the grant of the visa, the Tribunal supports an application for Ministerial intervention.

21. The circumstances of the applicant are that the only parents he has ever known are his adoptive parents, Mr and Mrs Kelleher. He was placed in the care of Mr and Mrs Kelleher when he was only about seven weeks old. He has had no contact with the person who is believed to be the biological father who has denied his relationship with the applicant. That person’s whereabouts is unknown. The applicant’s biological mother died in September 2006 when the applicant was two years old. He has no close family that he is aware of who would be able to provide any support to him in Papua New Guinea.

22. Mr and Mrs Kelleher applied for the adoption of the applicant through the Adoption of Children (Customary Adoption) Ordinance and a ‘Certificate as to Adoption’ was issued on 22 November 2004. The applicant had a birth certificate issued naming Mr and Mrs Kelleher as his father and mother. As Mr and Mrs Kelleher were living and working in Papua New Guinea they believed this was the correct process to formally adopt the applicant. They believed all necessary checks had been completed by the appropriate authorities in Papua New Guinea for them to be approved to adopt the applicant.

23. The Department’s decision to refuse the applicant the Subclass 802 Child visa made on 19 July 2017 provides the reasons why that adoption process did not meet the requirements for the applicant to be granted that visa.

24. Mr and Mrs Kelleher have been caring for the applicant in Papua New Guinea and Australia since he was seven weeks old. From March 2012, when the applicant was seven years old, he has lived permanently in Australia. He has thrived under the care of Mr and Mrs Kelleher. The reports from his school portray him as an active and positive member within the community and a positive role model for other students.

25. Mr and Mrs Kelleher have been trying to formally adopt the applicant under the laws of Papua New Guinea, however, have been running into bureaucratic delays. The documents that were originally provided to the appropriate authorities in Papua New Guinea in support of their customary adoption application have not been able to be located. Attempts to have welfare reports obtained have been hindered due to changes in staff and increased costs. Mr and Mrs Kelleher have engaged lawyers in Papua New Guinea to act on their behalf in attempting to finalise the formal adoption of the applicant, however, this does not seem to have expedited the process.

26. In all the circumstances, the Tribunal believes that if the applicant were not granted a visa he would face significant threats to his welfare and safety if he were required to return to Papua New Guinea. He has no close family members living in Papua New Guinea who would be able to provide him any support. He has not been to Papua New Guinea for the last seven years. In the unique and exceptional circumstances of the applicant, despite not meeting the criteria for the grant of the Child or the Orphan Relative visa, the Tribunal believes that it is appropriate that the Minister intervene in these proceedings.

    DECISION

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

    Hugh Sanderson
    Member

    
    

    ATTACHMENT

    Extract from Migration Act 1958

    Section 48    Non-citizen refused a visa or whose visa cancelled may only apply for particular visas 

    (1)  A non-citizen in the migration zone who:

    (a)  does not hold a substantive visa; and

    (b)  after last  entering Australia:

    (i)  was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

    (ii)  held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

    may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

    (1A)  A non-citizen in the migration zone who:

    (a)  does not hold a substantive visa; and

    (b)  after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:

    (i)  the application has been finally determined; or

    (ii)  the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

    (iii)  the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

    may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

    (2)  For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who:

    (a)  has been removed from the migration zone under section 198; and

    (b)  is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

    is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

    Note:    Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.

    (3)  For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

    (4)  In paragraphs (1)(b) and (1A)(b):

    (a)  a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and

    (b)  a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.

    Extract from Schedule 2 to the Migration Regulations 1994

    837.211

    If the applicant is a person to whom section 48 of the Act applies, the applicant:

    (a)  has not been refused a visa or had a visa cancelled under section 501 of the Act; and

    (b)  since last applying for a substantive visa:

    (i)  has become an orphan relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    (ii)  became an orphan relative of the person mentioned in subparagraph (i) and is no longer an orphan relative only because the applicant has been adopted by that person.