LAMNANSAI (Migration)

[2024] AATA 1115

LAMNANSAI (Migration) [2024] AATA 1115 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Parin LAMNANSAI

REPRESENTATIVE:  Ms Pichaya LIMCHUMROON (MARN: 1797768)

CASE NUMBER:  2317340

HOME AFFAIRS REFERENCE(S):          BCC2022/4764133

MEMBER:SM Michael Cooke

DATE:25 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802.212(1) of Schedule 2 to the Regulations

·cl 802.213(1) of Schedule 2 to the Regulations; and

·cl 802.221 of Schedule 2 to the Regulations.

Statement made on 25 March 2024 at 3:09pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – overseas adoption – 12-month overseas residence requirement – waiver of requirement – compelling or compassionate circumstances – economic circumstances – adopted son/biological nephew – drug addict sister – absentee father – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.212, 802.213, 802.221

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 13 October 2023 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 7 November 2022. 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 802.213.

4. The delegate refused to grant the visa on the basis that cl 802.213 was not met because the review applicant sponsor/the adoptive parent, at the time when the adoption took place, was not resident overseas for more than 12 months and the delegate did not accept that ‘compelling or compassionate circumstances existed which prevented the overseas residence’.

5. The applicant (a young child) appeared before the Tribunal on 19 March 2024. The Tribunal also received oral evidence from the sponsor and her daughter and son-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether ‘compelling or compassionate reasons’ exist which can ground waiver of the 12 month overseas residence requirement for an adoptive parent.

   The Hearing

9. The applicant was too young to give evidence. His mother and her daughter and son-in-law were physically present at the Tribunal. The sponsor impressed the Tribunal as a witness as she was forthright and credible. She recounted the history of her adopted son and the travails he faced in Thailand. She became tearful as she recounted the sad history of her drug addict sister’s lack of care for the applicant. Her mother was also too old to provide long-term care. She insisted that, as a family member, she could not stand idly by and see the child descend into a life of poverty, poor childcare and a troubled future.

10. The applicant explained that she visited Thailand on 4 occasions to see and attend to her nephew/adopted son. However, she had a business of her own and the income from that business not only maintained her family in Australia but also her three other family members in Thailand - who depended on her remittances. It was simply impossible, financially, to stay in Thailand for 12 months.

11. The Tribunal noted that even though she had proved that she had fully adopted the applicant under Thai law, she did not progress the adoption through the Adoption Convention protocol. The sponsor agreed with the Tribunal and excused her action due to ignorance. She informed that her adopted son was now living in Australia and attending primary school. He had thrived in Australia and was a contented child. She could not imagine him being forced to return to the heinous life he led previously in Thailand.

12. The applicant’s biological daughter and son-in-law informed the Tribunal that the sponsor was an excellent mother and they enjoyed having a younger family member. They did not want to see him have to return to Thailand.

    Dependency

13. The Tribunal finds that the applicant was under 18 and continues to be under 18 at time of adoption and is, therefore, the ‘dependent child’ of an Australian citizen.

14. The applicant meets cl 802.212(1) and cl 802.221 of the regulations at time of decision.

    Adoption criteria

15. If the Australian citizen, permanent visa holder or eligible New Zealand citizen of whom the applicant must be a dependent child under cl 802.212(1) is an adoptive parent of the applicant, the applicant must have been under 18 when the adoption took place, and must meet one of a number of alternative requirements relating to the nature and circumstances of the adoption and the status of the adoptive parent at the time of application: cl 802.213, extracted in the attachment to this decision.

    Findings and reasons relating to whether the applicant was under 18 when the adoption took place, and if so:

    ·whether the adoption was in accordance with the Adoption Convention and an adoption compliance certificate was in force; or

16. The Tribunal finds that the adoption was not in accordance with the Adoption Convention.

    ·whether the adoptive parent was not an Australian citizen, permanent visa holder or NZ citizen at the time of adoption, but subsequently became one; or

17. The adoptive parent sponsor is now an Australian citizen.

    ·whether the adoptive parent, who was an Australian citizen, permanent visa holder or eligible NZ citizen at the time of adoption, was approved by a competent authority as a suitable adoptive parent for the applicant before the adoption; or

18. The sponsoring parent has tendered a Thai adoption registration document to the Department. It states that the applicant (Master Parin Janthawong) was formally adopted by the sponsor/adoptive parent (Ms Rinmanat Lamnansai) on 8 August 2019 under Thai law. The applicant’s Change of Name Certificate has been submitted and reflects that due to the adoption, Parin Janthawong’s name was changed to Parin Lamnansai (the applicant’s name) on 8 August 2019.

    ·if the applicant was adopted overseas:

    a.whether the adoptive parent was an Australian citizen, permanent visa holder or eligible NZ citizen at the time of adoption; and

19. The parent was an Australian citizen, permanent visa holder or eligible NZ citizen at the time of adoption.

    b. whether the adoptive parent had been residing overseas for more than 12 months at the time of adoption, except if satisfied this requirement should not apply due to ‘compelling and compassionate circumstances’;

    ·Policy guidance for the 802.213(5)(b)(ii) “waiver provision” acknowledges that there are a complexity of situations that can arise with regards to adopted children and cases may arise where a person usually resident in Australia adopts a child overseas and the circumstances causing them not to be able to reside outside of Australia for more than 12 months prior to the adoption may be compelling or compassionate, and may subsequently be grounds to ‘waive’ sub-paragraph 802.213(5)(b)(i).

20. The adoptive parent had not been residing overseas for more than 12 months at the time of adoption. She visited Thailand, though, on 4 separate occasions between 2019/20.

21. The Tribunal finds (from the written and oral evidence before it) that personal business financial ‘circumstances’ caused the adoptive parent/sponsor to not to be able to reside outside of Australia for more than 12 months prior to the adoption. Such circumstances were both ‘compelling and compassionate’.

22. Firstly, for economic reasons the adoptive parent sponsor has put to the Tribunal could not absent herself from her Australia-based business for such a long period (she did visit on 4 occasions between 2017/8). This was particularly so because the income she derived from her business paid for her family livelihood. It also provided the financial wherewithal to send remittances to her mother and her young niece and her nephew (the applicant/adoptive son) in Thailand for their financial upkeep. She has indicated, furthermore, that any income she could (in theory) derive in Thailand was so low that she would never be able cover this necessary expense in that time period. Thai culture insisted that one’s duty to family was paramount. The personal circumstances of the applicant made this responsibility even more profound.

23. The Tribunal finds this is a ‘compelling’ or ‘forceful’ circumstance which can ground waiver.

24. Her adopted son (biological nephew) was the child of her drug addict sister and an absentee father. Knowing the applicant’s personal situation intimately, she anticipated he would not be properly cared for in the contemporaneous parental circumstance of his early childhood in Thailand. Thus, she saw it as a ‘compassionate’ (‘human feelings’) duty as a direct family member to adopt him and remove him forthwith from that potential danger. She proposed to raise him in a proper and safe environment in Australia. She saw that this was (in itself) a ‘compelling circumstance’ as she feared that to leave him in the family situation too much longer could impugn his whole future and personal safety.

25. The Tribunal finds these ‘circumstances’ are both ‘compassionate’ and a ‘compelling’ basis to ground waiver.

    a.whether the residence overseas was not contrived to circumvent the requirements for entry to Australia; and

26. Not applicable (see above).

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

27. The Tribunal is satisfied from Departmental information that the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.

28. Accordingly, the Tribunal finds that cl 802.213(5) is met at time of application.

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

    DECISION

30. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl 802.212(1) of Schedule 2 to the Regulations

    ·cl 802.213(1) of Schedule 2 to the Regulations; and

    ·cl 802.221 of Schedule 2 to the Regulations.

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Schedule 2, Part 802

    …

    802.213(1)    If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:

    (a)was under 18 when the adoption took place; and

    (b)meets the requirements of subclause (2), (3), (4) or (5).

    (2)The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.

    (3)The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.

    (4)The applicant meets the requirements of this subclause if:

    (a)the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

    (b)before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent's spouse or de facto partner as suitable adoptive parents, for the applicant.

    (5)The applicant meets the requirements of this subclause if:

    (a)the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and

    (b)either:

    (i)when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or

    (ii)the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

    (c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    (d)the adoptive parent has, or the adoptive parent and the adoptive parent's spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.