Laohasakprasit (Migration)

[2024] AATA 141

Laohasakprasit (Migration) [2024] AATA 141 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Chinnapat Laohasakprasit

CASE NUMBER:  2307637

HOME AFFAIRS REFERENCE(S):          BCC2023/204772

MEMBER:Meena Sripathy

DATE:25 January 2024

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 25 January 2024 at 10:35am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – overseas adoption – review applicant residing overseas for more than 12 months – visa applicant holds a Student visa – business opportunity in Australia – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 45, 65, 338, 351
Migration Amendment (2021 Measures No. 1) Regulations 2021
Migration Regulations 1994, Schedule 2, cls 101.411, 102.211, 102.411, 117.211, 300.412, 309.412, 445.411; r 1.14

CASES

Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation(1941) 64 CLR 241
Nguyet Huong Phung v MIEA (1997) 74 FCR 422   

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 16 May 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, a Thai national, born in March 2007, applied for the visa on 9 January 2023.  He was sponsored by Hataitip Laohasakprasit, an Australian citizen.  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 was not met because the delegate was not satisfied that the adoptive mother, the sponsor, was residing overseas for more than 12 months at the time of the visa application as required by cl.102.211(2)(b)(ii) and there was no evidence to indicate any of the alternate subparagraphs of cl.102.211 were met. The delegate did not consider whether the criteria for the other subclasses in Class AH were met, and refused the application.

5. The visa applicant has been in Australia since April 2019 on a subclass 500 student visa. At the time the visa application was lodged he was outside Australia. He returned to Australia on 28 January 2023 and was onshore at the date the application was refused. The visa applicant was in Australia at the time he lodged the review application on 1 June 2023.   The Tribunal observes that although the visa application and visa applicant were offshore at the time the application was made, the visa applicant returned to Australia on 28 January 2023.  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 in this matter has standing to seek review of the decision, 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 22 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Hataitip Laohasakprasit. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. The issue in the present case is whether the visa applicant meets cl.102.211(2) or the criteria relating to any of the other subclasses in the Class AH visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

9. The visa application form indicates the visa applicant is a Thai national, born in March 2007 and 15 years of age at the time of application. The form indicates he was born in Bangkok Thailand and provides the names of his parents, Supphasate Laohasakprasit and Sangvari Wipavee who reside in Thailand.  It is indicated the visa applicant has been in Australia since April 2019 for the purpose of study.

10. The sponsorship form states the visa applicant is sponsored by Hataitip Laohasakprasit, an Australian citizen.  The visa applicant is her adopted child, adopted after she became an Australian citizen or holder of a permanent visa. The sponsor provides three residential addresses, from 2007 to the current, all in Australia. Details of her partner are included in the sponsorship form.

11. Various identity and other documents were submitted with the application, including the visa applicant’s passport, birth registration and certificate naming his parents and Thai ID card; birth father’s change of name certificate; Child’s Adoption Registration dated 17 November 2011 and Memorandum relating to the adoption, divorce certificate of visa applicant’s birth parents dated 25 December 2012; sponsor’s Australian passport and citizenship certificate and evidence of change of name.

12. Following lodgement of the application, on 17 March 2023 the Department wrote to the applicant inviting comment on information about the time spent by the adoptive parent outside Australia prior to the date of application, specifically, information which indicates the claimed adoptive parent had not spent time required 12 months outside of Australia.  The invitation referred to the requirement in cl. 102.211(2)(b)(ii) that at least one of the adoptive parents must have been residing offshore for more than 12 months prior to the lodgement of the visa application, and this information indicates the applicant does not satisfy this requirement.  The applicant was invited to comment and provide any additional information and documentation.  

13. On 12 April 2023, the sponsor provided an explanation for why she could not stay with the visa applicant in Thailand for 12 months and explained the nature of her relationship with him.  She explained that she was unable to return to Thailand to spend the required 12 months with the visa applicant because she had an opportunity to establish a business in Australia, which she took up. By doing this she was able to support the visa applicant, and she also visited him each year since 2013 and took him on overseas holidays. From 2019 she brought him to Australia to study because she was unable to visit him due to her business commitments. The visa applicant has completed years 7 to 11 in Australia and she pays all of his expenses. In support, the sponsor provided various documents including school and other fees receipts in respect of the visa applicant for 2020-2023, an insurance premium receipt, photos, money transfer from 2012 and various school records and commendations for the visa applicant.

14. On 16 May 2023 the delegate refused the application on the basis that cl.102.211(2)(b)(ii) was not met because the adoptive parent had spent 0 days outside Australia before the application was lodged and therefore did not meet the required 12 months overseas residence requirement.  The delegate considered the sponsor’s explanations but was not satisfied that she was residing overseas in the 12 months prior to the application as required. The delegate found she was normally resident in Australia in this period. The delegate was not satisfied any of the other paragraphs of cl.102.211 were met and did not consider the alternate subclasses in Class AH.

    Evidence before the Tribunal

15. Before the Tribunal the applicant submitted copies of the evidence previously submitted including the letter of explanation by the sponsor, photos of the visa applicant and sponsor and school progress reports and awards.

16. On 15 January 2024, the Tribunal received further documents in support including a medical certificate relating to the visa applicant’s biological mother dated 4 October 2020 indicating a diagnosis of depression; evidence of sponsor’s financial support of the visa applicant in 2012-2014, copy of an insurance premium receipt and school records and receipts relating to the visa applicant’s education and activities. Also provided were updated letters from the visa applicant and sponsor regarding their relationship and circumstances.  The sponsor’s letter repeats the content of the previous explanation provided to the Department.  The visa applicant’s letter sets out the challenges he faced in Australia, the support he receives from his adoptive mother and his goals and desires for the future and requests consideration be given to waive the 12 month overseas residence requirement for the sponsor to enable him to accomplish his goals.

    Tribunal hearing 

    Evidence from review applicant

17. The review applicant confirmed his address and that he lived with the sponsor who is his aunty, and he also refers to her as ‘mum’.  He has been living with her continuously since he has been in Australia, at this and a previous address. He attends John Edmonson High School. He has been there since year 7 and is now in year 12.  He has no other family members in Australia. The sponsor interjected at this point and mentioned that he has a cousin who recently migrated here with his family.

18. In Thailand the review applicant has his mother, father and grandparents.  His mother has two siblings and his father also has many siblings.  His parents are separated, and have been separated since he was around 7 years old. Before he came to Australia in 2019, he lived with his mother. He lived with his mother since his birth to this time.  After his father separated from her he continued to see his father regularly, around once a week. The review applicant confirmed he visited Australia before he came to live here but he was young and cannot recall when. 

    Evidence from sponsor

19. The sponsor gave the Tribunal her address and stated she lives there with the review applicant. For the past year her partner has also lived there with them.  She has a farm business, operated with her partner, from a property next door. The business is her sole source of income and she generates her income from it.

20. The sponsor confirmed her migration history as follows. She came to Australia in 2000 as a student. Subsequently she applied for permanent residency and was granted it in 2003.  She then returned to Thailand for a few years and worked at Citibank.  She returned to Australia in 2005 and has stayed here since then working in various jobs. She returns regularly to Thailand for short holidays to visit her parents and family.  In 2007 she obtained Australian citizenship. In around 2011 she started the farm business that she continues to operate today. 

21. The Tribunal asked about her ties in Australia and Thailand.  She said she owns property in Lithgow which she rents out.  She also has bought a property in Strathfield but it is not yet completed. In Thailand,  she has a house in Bangkok which she bought 3 or 4 years ago. The plan was for it to be a place to stay when she visited or she could rent it out. She also has some land in a province about one hour from Bangkok which she bought about 3 years ago. Her long term plan is, if she gives up her farm here, she may return there and farm that land. The sponsor has a bank account here and has been in a long term relationship for over 10 years. Her partner is of Japanese heritage.  She considers Australia to be her home.  She continues to have ties to Thailand mainly for her family. Her mother is now in her 90’s.  The sponsor’s plan is to spend more time with her mother once the applicant is at university but until then she has obligations to him.

22. The Tribunal asked the sponsor about her relationship with the review applicant. He is the son of her younger brother. He and his wife were living together in Bangkok. After the review applicant was born, the sponsor became aware they were going to break up and she offered to her brother to help by taking responsibility for the child. The review applicant’s parents separated and he lived with his biological mother and maternal grandmother. The sponsor’s brother later remarried and has two daughters, aged 5 and 3. The sponsor is in contact with her brother, mainly to share about their mother and she also keeps him informed about the review applicant.  The sponsor has also kept in contact with the review applicant’s mother, but she is not as close.  She is aware she has not re married and she is not currently working. Her own mother lives close by and she often goes over there. The sponsor confirmed that before coming to Australia in 2019, the visa applicant lived with his biological mother and maternal grandmother.

23. The Tribunal asked the sponsor why the biological mother agreed to the adoption.  She said she agreed because the sponsor offered to financially support him.  When asked about the process of obtaining the adoption, she said all three of them went together to the government office to sign an agreement to hand over control of the son to the sponsor. She was also visited in her place by an officer before the order was granted. During this period the sponsor was travelling back and forth between Australia and Thailand.  She stayed with the review applicant’s mother each time.  The Tribunal asked if she did anything after she obtained the adoption order to assert her parental role. She said she considered herself his mother, but when she applied for a visa for him after this in 2014 the Department insisted that his biological parents make the application for him. The Tribunal queried why she went through the adoption process. She said she wanted to support the child because his parents had separated.

24. The Tribunal discussed the issues arising in the case having considered the evidence and information before it. It explained that given the evidence that she was already an Australian citizen at the time of the adoption, the criteria for the subclass 102 visa requires that she has been residing overseas for more than 12 months at the time of the application.  The evidence she has given and movement records do not support that she lived overseas for 12 months.  The sponsor agreed with this.  The Tribunal explained that the alternative subparagraphs of 102.211 relate to competent authorities and government agency-initiated adoptions and there is no evidence that this was such an adoption.  It also explained that it has considered the criteria in subclass 101 (Child) but this relates to an adoption where the adopter was not an Australian permanent resident but later became one and this does not apply to her.  Finally, it considered the Orphan Relative subclass but because the evidence indicates the review applicant’s parents are not dead, permanently incapacitated or whereabouts unknown he would not appear to meet this definition. 

25. The Tribunal asked the review applicant and sponsor if there is anything further they want the Tribunal to consider. The sponsor asked if it is possible to waive the 12 month overseas residence requirement. The Tribunal explained there is no discretion to waive or not apply this.  It mentioned that if the Tribunal’s decision is unfavourable, there is an avenue to seek Ministerial intervention under s351, but this power is exercised only in exceptional circumstances and is at the discretion of the Minister for Immigration. It urged the review applicant and sponsor to seek professional advice regarding the visa pathways available to him.

    FINDINGS AND CONSIDERATION

26. 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).

27. In the present case, there is no claim of a State/Territory or other agency arranged adoption.  The applicant claims to have been adopted under formal private arrangements in accordance with Thai law by his relative, the sponsor. 

28. 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.

29. Evidence before the Tribunal in departmental records and confirmed at hearing, indicate that the sponsor has been residing in Australia continuously since at least 2005 as a permanent resident.  She obtained her Australian citizenship in 2007 and established a business in 2011 which she continues to run to date. On the sponsor’s own evidence, she returned regularly to Thailand to visit her parents and the review applicant and her siblings between 2007 and 2019, staying for short periods of between 1-3 weeks.  She told the Tribunal she was unable to spend longer periods because of her business commitments.  The Tribunal explored with the sponsor the nature of her ties to Australia and Thailand in this period.  It finds, on the evidence, that Australia is and was her place of residence, within the relevant  legal meaning of that term.[3]   Specifically, the Tribunal finds that the sponsor established a business, commenced and has maintained a long term relationship with a partner, has purchased properties and eats, sleeps and has her settled abode in Australia. On her own evidence she considers Australia her home, at least for the time being, if not forever.  The Tribunal acknowledges that she has also maintained ongoing ties in Thailand, has regularly visited there and has close family ties and property.  However, it is not satisfied on the evidence that the continuity of association with Thailand is sufficient to establish residence in that country within the meaning of this term for this provision. 

    [3] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation(1941) 64 CLR 241 at 249; Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164.

30. While the language of the criteria in the legislation does not appear to require the residence overseas to be in a single country or even in the country where the adoption took place nor is it entirely clear that the requirement is for 12 months continuous residence overseas[4] in the present case the Tribunal is not satisfied the evidence supports a finding that the sponsor resided overseas for the requisite period on any view of the requirement.

    [4] 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 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 also considered whether the applicant meets the criteria for the other subclasses in Class AH, namely Subclass 101 (Child) and Subclass 117 (Orphan Relative). While noting that the delegate did not turn their mind to whether the criteria for the other subclasses in Class AH were met, the Tribunal is of the view that it is incumbent on the Tribunal to do so. Section 45 of the Act refers to an applicant applying for a visa of a particular class. In this case, the applicant applied for Class AH visa, which contains three subclasses as described earlier. Therefore, the applicant must be assessed against each of those subclasses, for which the requirements of Schedule 1 have been met. The requirements of Schedule 1 are met for all three subclasses in this case. The Tribunal has therefore considered whether the applicant meets the Schedule 2 criteria in respect of the remaining subclasses.

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 parents are both alive, their whereabouts are known and there is no evidence that either of them are permanently incapacitated. 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 adopted by the sponsor in Thailand by registration of an Adoption order on 17  November 2011. However, the sponsor has been an Australian citizen since 15 June 2007, well before the adoption took place. Therefore the applicant does not meet cl.101.211.

8. For these reasons,  the applicant does not meet the criteria for the grant of any of the visas in Class AH.

   Ministerial Intervention

9. The applicant and sponsor asked the Tribunal to consider waiving the 12 month overseas residence requirement in this case in circumstances of the demonstrated support of the sponsor to the review applicant particularly over the past 5 years of his study here.  The Tribunal explained that it has no power, given the terms of the legislation it is required to apply, to exercise any such discretion.  It is required to assess the application which is the subject of the review against the applicable legislative criteria, and no more. Following an adverse decision of the Tribunal however, the parties may consider seeking 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. If the review applicant wishes to do so, he can make such a request directly to the Minister. 

11. The Tribunal observes that the applicant holds a TU 500 student visa valid to 15 March 2025.  The expiry of this visa is not affected by the present decision and he may wish to seek professional advice as to future visa pathways available to him.

    DECISION

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

    Meena Sripathy
    Member