Kinikay (Migration)

[2022] AATA 5244

Kinikay (Migration) [2022] AATA 5244 (29 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Helen Rose Kinikay

CASE NUMBER:  2114928

HOME AFFAIRS REFERENCE(S):          CLF2020/11880

MEMBER:Meena Sripathy

DATE:29 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2022 at 10:43am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – adopted child of the sponsor – residing overseas for more than 12 months at the time of application – Orphan Relative (Subclass 117) and Child visa (Subclass 101) considered – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 102.211

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 Home Affairs on 22 October 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 March 2020. 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 were made in respect of Subclass 102 (Adoption).

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 which requires an applicant to be under 18 and have been, or will be, adopted overseas by an Australian citizen, permanent resident or an eligible New Zealand citizen under certain types of adoption arrangements.

4. The delegate refused to grant the visa on the basis that cl 102.211(2)(b)(ii) was not met because the sponsor had not been residing overseas for more than 12 months at the time of application. The delegate considered, but was not satisfied, that the applicant met any of the alternative subparagraphs of cl.102.211 or the criteria for any of the other subclasses in the Child (Migrant) Class AH, being Orphan Relative or Child visas.

5. The visa applicant applied for review of the decision to the Tribunal on 22 October 2021.  The Tribunal observes that although the visa application and visa applicant were offshore at the time the application was made, the visa applicant arrived in Australia on 4 May 2020.  Following amendments that came into effect from 27 February 2021[1] that permit a Subclass 101 and 102 visa to be granted inside Australia in certain circumstances,[2] a decision to refuse a Class AH visa is reviewable under s338(7A), as long as the visa applicant is in the migration zone when the refusal decision was made and at the time of applying for review.  Therefore, the visa applicant has standing to seek review of the decision in this case, rather than the sponsor. 

   [1] Migration Amendment (2021 Measures No. 1) Regulations 2021

   [2] cls 101.411(2), 102.411(2), 300.412(2), 309.412(2), 445.411(2) inserted by items 4–8 of Sch 1 to the Amending Regulations.

6. The applicant appeared before the Tribunal on 25 October 2022 to give evidence and present arguments.  The hearing was combined with the review of the applicant’s brother, Vetali Moale Kini, who made a separate review application to the Tribunal on the same date in respect of his visa refusal, also constituted to the same Tribunal (AAT reference 2114931) The Tribunal received oral evidence from the sponsor, Ms Lilian Martin, who sponsored both visa applicants.

7. The issue in this case is whether the visa applicant meets cl. 102.211, and if not ,whether she meets the criteria for any of the other visas in the same class.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa applicant was born in November 2004 in Port Moresby, Papua New Guinea. She provides details of a father (Kinikay Kini), a mother who is deceased (Asi Moale) and another mother (Rose Kini) and 10 siblings.  She is sponsored by Lilian Martin, born in 1988, a Papua New Guinan born,  Australian citizen. The application is made on the basis of the applicant being the adopted child of the sponsor, with the adoption taking place after the sponsor became an Australian citizen.

10. The following documents were provided with the application :

    ·Applicant’s certificate of birth. Indicating the names of her biological mother and father

    ·Application for Customary Adoption form dated 14 October 2019

    ·Consent to Customary Adoption issued under the Consent for Customary Adoption Act (Chapter No 275) dated 10 October 2019

    ·Certificate as to Customary Adoption under Adoption of Children (Customary Adoption) Act 1969

    ·Court Order issued by the Family Court, Port Moresby, National Capital District, granting the application for the issuance of the Certificate as to Customary Adoption of the visa applicant and her brother to the sponsor dated 16 October 2019

    ·Court Order issued by the Family Court, Port Moresby, National Capital District, granting the application for sole child custody in relation to the visa applicant and her brother to the sponsor dated 16 October 2019

    ·Report of welfare officer, Veronica Paita following an interview with the natural father and adoptive mother.

    ·Statutory Declarations of Kinikay Kina, father of the visa applicant dated 11  October 2016 and 22 November 2016

    ·Identity documents of the sponsor, including Australian passport, Australian Defence Force identification, Drivers licence and Medicare card; Sponsor’s certificate of birth; Sponsor’s Australian Citizenship certificate

11. The delegate considered the evidence and information before it from Department records which indicated the sponsor spent 40 days outside Australia from 5 October 2019 to 8 November 2019, and 28 February 2020 to 6 March 2020.   As this information indicated the sponsor had not spent 12 months outside Australia at the time of application the applicant could not meet cl, 102.211(2)(b)(ii) and the application was refused. The delegate considered the criteria applicable to the other subclasses in Class AH, but concluded she does not meet the criteria for Orpha relative because she has a parent alive, whose whereabouts are known and who is not permanently incapacitated. As the sponsor was an Australian citizen at the time she adopted the visa applicant the applicant cannot meet the Child visa requirement.

    Evidence before the Tribunal

12. Before the Tribunal copies of the previously provided documents were submitted. Additionally the following document was submitted:

    ·Declaration of Validity of an Overseas Adoption Order – Non Convention Country issued by the Children’s Court, Townsville on 10 September 2020 recognising the Certificate as to Customary Adoption issued by the Family Court at Port Moresby, PNG n 16 October 2019.

    The Declaration provides that for the purposes of the laws of Queensland, the adoption has the same effect as an adoption order made under the Adoption Act 2009 (s293)(2).

    Tribunal hearing

13. At the hearing the applicants’ sponsor Ms Lilian Martin (Ms Martin) provided the following evidence.  She confirmed her address, where she lives with the two applicants.  Prior to this address they lived at another address, also in Townsville. The applicants have lived with her since they arrived in Australia on 2 May 2020. They came here because they were living with Lilian’s sister, and she had recently given birth and was unable to look after all of the children. She applied for their visas as their guardian, as by this time she had full custody rights for the children by the PNG court.

14. Ms Martin was employed by the Australian Defence Force until last year.  She left because she worked for the Navy and was required to go back to sea for extended periods and she could not do that with the two children in her care. She remains a reservist, but now works full time for Northern Stevedoring Services. The applicants are at school, in years 11 and 10 respectively, since 2021.

15. Ms. Martin came to Australia as an infant with her father.  Her mother and two siblings remained in PNG.  She returned regularly throughout her childhood.  Her two siblings came to Australia later. She is an Australian citizen since childhood, having been granted on the basis of her father. Her father was a cattle ranch manager in PNG. He was a British national.

16. The witness gave the applicants’ dates and places of birth, and names of their birth parents, Asi Maole and Kinikay Kinu.  Their mother, Asi Moale passed away when Vetali was a young baby, not at birth. They believe she died form illness. There is no death certificate because she died in the village. Ms Martin provided Statutory Declarations from her father and other village elders who attest to her death.  Rose, referred to in the application form, is the subsequent partner of their birth father.  At the time of Asi Moale’s death, she had three children with Kinikay Kinu and the children were given to different families under customary arrangements. The eldest daughter was given to the paternal uncle, Helen Rose was given to the paternal aunty and Vetali was given to the maternal grandparents. Ms Martin explained that this was in accordance with customary practices, and in fact the paternal uncle and aunt had asked for the eldest two even prior to her mother’s death. The son went to his maternal grandparents because the bride price had not been paid. Later, Lilian was asked to take the son into her care, in exchange for agreement to ensure a headstone was provided for their mother. Apart from these children Asi Moale had two daughters from a previous marriage, they are adults and have their own children now. Kinikay has six other children with his later wife, Rose, who are listed in the application. They live together in Taruba village. Kinikay is a subsistence farmer and lives off his farming income. 

17. Ms Martin said that when her mother passed away in December 2014, Helen stayed in the care of her mother, Ms Martin’s grandmother. By this time Ms Martin was already fully financially supporting her, her mother and grandmother and continued her financial responsibility after her mother passed away.  The Tribunal asked where the visa applicants’ lived throughout this time. She said he lived in Taruba village, but after Ms Martin’s mother passed away, he moved in to the same house to take care of the children and grandmother. Vetaly was cared for in another village, Boera, around 100 kms away.  Around 2018 the family came to an agreement that Ms Martin take over responsibility for all the children and after that he moved to Port Moresby to live with Ms Martin’s younger sister and his own sister.

18. The Tribunal asked Ms Martin about her own movements from Australia, noting that movement records before it indicate she spent only between 1-3 weeks each year outside Australia from 2016-2020.  She explained that in the 8 years she was working for the ADF in Cairns the majority of her deployments were in PNG. While she was in PNG waters she would visit the children. This is recorded in her official navy passport, separate to her ordinary passport. The Tribunal requested her to provide a copy of this travel record.

19. The Tribunal discussed the issues arising in the reviews. The Adoption subclass contains various alternative criteria, of which one must be met at time of application.  Of these one relates to adoptions undertaken privately and the remainder relate to adoptions arranged through state and Territory agencies. The private adoption alternative includes a requirement that the person adopting, be an Australian citizen or permanent resident and have been residing overseas for more than 12 months at the time of application.  It put to her that she does not appear to meet this and invited her comment or response. In response Ms Martin said she understood this but asked whether it could be taken into account that she has a property in PNG, which she maintains and has also been financially supporting the children for many years and they live with her younger sister. So even though she is not there physically she is supporting them in every way.  The reason she could not reside there for the 12 months was because she was the only breadwinner and had to keep working. The children have known her all their lives. She supported both sides of the family.

20. Ms Martin asked the Tribunal whether the Queensland court order makes any difference. She explained that thy underwent a process and had to explain to the court the customary arrangements, establish that she maintains a property in PNG in which the applicants were living and has been providing financial support for many years.  Her father also gave evidence in support. She can submit further evidence provided in that context if necesarry.

21. The Tribunal explained to Ms Martin the issues arising for the two alternative subclasses. Subclass 101 contemplates an adopted child, including by customary adoption, but it only recognises adoptions (including by custom) made overseas by a person who was not at time of adoption an Australian citizen or permanent resident but later became one. Subclass 117 is for an orphan relative, which has a specific meaning - that the person cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal put to the witness than neither of these appear to fit the applicant’s circumstances.  It invited comment or response. She said she has no further response to this as she understands the issues and accepts that the criteria cannot be met. 

22. The Tribunal asked if she sought any migration assistance at any stage. She said she tried to but everywhere she called said they were uncertain that she had any options.

23. The Tribunal asked about the circumstances of the applicants since they have been in Australia.  She said they have done very well since they have been here. When they first came they had little English and are now more fluent. They are passing their subjects at school. They particulate in school and community sports. They have no health issues. In PNG they were much worse off. If they had a shortage of food they would not go to school. Helen’s school was more than 15 km distance and she had to walk and so often did not go.  Vetali was not really going to school. When they first came Helen was in grade 9 in PNG and tested at grade 6 level and Vetali was in grade 7 and tested at grade 4 level. Since then they have both caught up and are now passing English and Maths at their respective class levels.

24. The Tribunal explained it would carefully consider the evidence and the legislative provisions but that ultimately it can only consider whether the applicants satisfy the criteria and cannot take into consideration any other circumstances. In the event that it is unable to find in the applicants’ favour and affirms the decisions under review, they may be able to request the Minister to intervene and substitute a decision under s351 of the Migration Act, which is a non compellable discretionary power that only the Minister can exercise.

25. Following the hearing, on 7 November 2022,   the Tribunal received the following information from Ms Martin relating to her deployments overseas while employed with the Australian Navy:

    ·Letter dated 7 November 2022 from Lieutenant Commander Michael Rigby HNAS Cairns, indicating Leading Seaman Lilian Martin was overseas deployed in PNG waters as follows:  21/01/2010 HS WHITE Crew deployed Hydrographic Instruction (HI)472 ~ Trobriand Islands, PNG. From 4th February to 19th April 2010; 04/10/2010 HMAS PALUMA & 07/01/2011 HMAS BENALLA deployed HI488 ~ Caution Bay, PNG. From 19th January to 1st March 2011; 04/07/2011 HMAS BENALLA deployed HI501 ~ Ashmore Reef, Indian Ocean. From 25th July to 5th October 2011; 22/09/2014~18/05/2015 HS RED Crew deployed HI558 ~ Maped Reef, Torres Strait. From 13th October to 11th December 2014.

    ·Minute by A Townsend SGT Milcoord NQ dated 2 November 2022 providing confirmation of official deployments from 4-6 February 2011; 29 April to 22 May 2011; 29 October -26 November 2018

26. Ms Martin also requested the Tribunal consider making a recommendation for Ministerial intervention if the information she has provided is insufficient to support a favourable decision in the matter.  

    FINDINGS AND CONSIDERATION

27. Subclass 102 covers both private adoption by Australians resident overseas and adoptions arranged with the involvement of adoption authorities. In order to meet the requirements of cl 102.211(1), the applicant must be the subject of any one of four kinds of acceptable adoption arrangements, namely private overseas adoptions (cl.102.211(2)), an adoption arranged by a State/Territory competent authority (cl.102.211(3)), Hague Convention or bilateral adoptions (cl.102.211(4)) or third country Hague Adoption Convention (overseas adoptions (cl.102.211(5).

28. In the present case, there is no claim of a State/Territory or other agency arranged adoption.  The applicant claims to have been adopted by private, customary arrangement by her relative, the sponsor. 

29. Therefore the only subparagraph of c.102.211 relevant in this case is subparagraph (2), which requires, at the time of application:

    ·The applicant has not turned 18;

    ·the applicant must have been adopted overseas by a person who was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen;  and

    ·the adopting parent/s had been residing overseas for more than 12 months at the time of the application; and

    ·the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    ·the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.

30. Information contained in Departmental movement records indicate that the sponsor has been outside Australia for short periods between 1-3 weeks a year from 2016 to 2020, prior to the application, and well short of 12 months.  At hearing she confirmed the dates outside Australia were the only periods she was in PNG on her Australian passport, though she explained that she was at this time an officer in the Australian navy and did spend time on official deployments in PNG waters, during which times she would visit the applicants for short periods if permitted.  Following the hearing evidence of these deployments was provided, indicating periods she was in PNG waters, for consideration as to whether, if the length was sufficient, this could be considered periods of residences overseas. 

31. The Tribunal has considered this information, but finds that the periods indicated, even when added together, fall short of the required period of 12 months (365 days) - at best they total 290 days in the combined period of 2010-2018. While the terms of the legislation do not appear to require the residence overseas to be in a single country or even in the country where the adoption took place and it is also not entirely clear that the requirement is for 12 months continuous residence overseas[3] in the present case the evidence does not support that Ms Martin resided overseas for the requisite period on any view of the requirement.

    [3] See Nguyet Huong Phung v MIEA (1997) 74 FCR 422 at 428 where the Court, considering a similarly worded, previous version of this provision, held that this required the 12 months or more to be prior to the time of application (impliedly, immediately prior to the time of application) and it was not sufficient if the adoptive parent has had, at some earlier time, a period of more than 12 months overseas residence. Arguably this language may suggest a single period of 12 months or more is required and not several periods amounting to 12 months or more but the Tribunal notes there is no judicial authority on this point.

1. Therefore, the applicant does not meet cl.102.211(2)(b)(ii).

2. Having found that the applicant does not meet cl.102.211(2), and there is no evidence to suggest any of the alternative subparagraphs of c.102.211 can be met, the Tribunal finds the applicant does not meet cl.102.211. 

3. For the reasons above, the criteria for the grant of a Subclass 102 visa are not met.

4. The Tribunal has considered whether the applicant meets the criteria for the other subclasses in Class AH, namely Subclass 101 (Child) and Subclass 117 (Orphan Relative). 

5. To meet the criteria for Orphan Relative Subclass 117, the applicant must be an orphan relative of an Australian relative, as that term is defined in r.1.14 of the Regulations: cl. 117.211. This requires the Tribunal to be satisfied the applicant cannot be cared for by either parent because each of them is dead, permanently incapacitated or of unknown whereabouts.  In this case, on the evidence before it it is clear that the applicant’s biological father is alive. There is no evidence he is permanently incapacitated or his whereabouts are unknown. Therefore the applicant does not meet the requirements for this Subclass.

6. In respect of the Child visa (Subclass 101), the criterion in cl 101.211 requires 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).

7. In the present case, the applicant claims to have been customarily adopted by the sponsor in PNG in 2007. The evidence before the Tribunal indicates the sponsor obtained a Certificate as to Customary Adoption confirming the customary adoption by the Family Court in PNG on 16 October 2019. However, the sponsor has been an Australian citizen since 1996, well before the customary adoption too place. Therefore the applicant does not meet cl.101.211.

8. Therefore the applicant does not meet the criteria for the grant of any of the visas in Class AH.

   Request for Ministerial Intervention

9. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

10. In the present case, the Tribunal accepts on the evidence that the sponsor has had substantial involvement in the applicant’s life since she was a young child. The arrangements for the care of the applicant and her siblings, on the evidence before the Tribunal, appears to be consistent with usual practice and custom in PNG relating to customary adoptions. The sponsor and her related family members followed necessary formal requirements and obtained formal court orders from the Family Court in PNG recognising the customary adoption in October 2019 and a Declaration has now been made recognising this Certificate as to Customary Adoption for the purposes of the law in Queensland. In effect, the adoption has the same effect as an adoption made under the Adoption Act 2009 (Qld).

11. Therefore, for the purposes of Australian law, the sponsor is the recognised adopted parent of the applicant.  The applicant entered Australia on 4 May 2020 and has been here continuously since that time. She lives with, and has been cared for by the sponsor since that time.  The sponsor gave evidence to the Tribunal that she left her long term service and career with the Australian Defence Force specifically to care for the applicant and her sibling. The oral evidence to the Tribunal at hearing was that the applicants have made significant progress in their education since they have been in Australia, and have integrated well into the local community, participating in sports and social life.  They have no health issues. 

12. The Tribunal has considered the Ministerial guidelines and is of the view that the present matter comes within the following unique or exceptional circumstances for referral for possible consideration of the use of the ministerial intervention powers:

    ·strong compassionate circumstances that would result if not recognised in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or Australian family unit – the sponsor would suffer serious, ongoing and irreversible harm and continuing hardship caused by the  separation of her from her adopted children to whom she has dedicated care, responsibility and support over a substantial period and in respect of whom she holds legal parental responsibility.

    ·compassionate circumstances regarding the age, health and psychological state of the person that if not recognised would result in serious, ongoing and irreversible hardship to the person – the applicant, a 17 year old minor,  has been residing in Australia with her adopted mother for the last two and a half years and has made significant progress in her education and welfare.

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation ; or the application of relevant legislation leads to unfair or unreasonable results in a particular case – the circumstances of the applicant’s adoption, now legally recognised in Australia, falls between the criteria for recognition of adoption in both the Adoption visa subclass (because of the sponsor’s Australian citizenship status) and Child visa subclass (because of the sponsor’s Australian citizenship status) This leads to the unfair result that the applicant in unable to meet the criteria under any of the alternative subclasses in the Child visa class and is forced to separate from her legal parent.    

13. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and, for the above reasons, refers the matter to the Department.

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Meena Sripathy
    Member