LAVELUA Applicant And MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 314

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 314

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/0117

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SIONE UASIKE LAVELUA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date21 April 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

John Handley

Senior Member

CITIZENSHIP – application for citizenship by conferral by an infant adopted by Australian citizens in Tonga – Hague Convention – whether Tonga a Convention country – decision affirmed – recommendation to have a visa issued to allow child to remain in Australia with his parents.

Australian Citizenship Act 2007  s 19C

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 Reg 3 and 4

REASONS FOR DECISION

21 April 2010   Mr John Handley, Senior Member  

1.      At the conclusion of the hearing on 21 April 2010, I delivered oral reasons affirming the decision made by the Minister on 16 December 2009.  The applicant has not requested written reasons but I have decided that they should be provided in order to (hopefully) assist the applicant’s parents to comprehend my reasons.  In addition, if further advice is sought (which I recommended), the applicant’s advisors will also be aware of the circumstances giving rise to the decision that was made.

2.      The factual circumstances in this application are not in dispute and may be summarised as follows.

3.      On 13 November 2009 Sione Uasike Lavelua applied for Australian citizenship.  He was born on 16 April 2008 and had his second birthday 2 weeks ago.

4.      Sione was born in Tonga.  An adoption order was made by the Supreme Court of Tonga on 21 October 2009.  Justice Laurenson was satisfied that the best interests of Sione were satisfied by an Order of Adoption in favour of Timote Lavelua and Simaima Lavelua who are husband and wife.  Mr and Mrs Lavelua are citizens of Australia having been granted that entitlement on 16 September 2005 and 18 November 1996, respectively.  Shortly after the Order for Adoption was made, Sione entered Australia with his adoptive parents.

5.      Mr Lavelua appeared on behalf of Sione at the hearing.  He said incorrect or poor advice was given to him in Tonga.  He also alleged that the application for citizenship was made by reason of a telephone discussion he had with an officer of the Australian Immigration Department.  On the basis of that conversation, Mr Lavelua understood that the application for citizenship would be approved.

6.      By reason of the combined provisions of s 19C the Australian Citizenship Act 2007 (the Act) and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (the Regulations), I am unable to set aside the decision under review. .

7.      Section 19C(2) of the Act sets out the eligibility requirements for Australian citizenship by persons who have been adopted.  Section 19C(2) relevantly provides that a person (the applicant) is eligible to become an Australian citizen if the applicant is adopted in a Convention country by at least one Australian citizen (the adopter) and an adoption compliance certificate was issued in that country and is in force for the purposes of the adoption. 

8.      The terms Convention country and adoption compliance certificate are defined in the Regulations.  Regulation 4 provides that a Convention country is a country specified in Schedule 2 of the Regulations or any other country in which the convention is in force.  Regulation 3(1) defines the convention as the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (reproduced in whole in Schedule 1of the Regulations).  Tonga is not recorded in Schedule 2 and the convention is not in force in Tonga.  Therefore, Tonga is not a Convention country.

9.      Regulation 3(1) provides that an adoption compliance certificate is a certificate issued in accordance with article 23 of the Convention.  Article 23 requires that an adoption must be certified as having been made in accordance with the Convention.

10.     Accordingly the decision under review must be affirmed because:

(a)Sione was adopted in Tonga but Tonga is not a Convention country;

(b)an adoption compliance certificate did not certify the adoption was made in accordance with the Convention (Article 23 of the Convention); and

(c)therefore, under the Regulations, the adoption is not recognised by Australia.

11.     After the reasons were delivered, there was a lengthy discussion with Mr Lavelua in response to his concern that Sione may not be permitted to continue to reside in Australia beyond 30 June 2010 when a visa currently in force will expire.  It was learnt that the visa currently issued to him is intended to operate during these proceedings or any other application that might be made for citizenship.  Mr Lavelua was advised to seek assistance from suitably qualified migration lawyers or agents to explore the possibility of securing a visa to permit Sione to remain in Australia.  Ms Linacre who appeared on behalf of the respondent was unable to indicate whether any visa may be issued to Sione.  She also indicated that it would be in the interest of the parents to obtain professional assistance.

12.     For my part, I would recommend with respect, that an appropriate visa be issued to Sione to allow him to remain in Australia.  He is a two year old child adopted by Mr and Mrs Lavelua.  It was apparent from the interaction between them and Sione at the hearing that they enjoy a loving relationship.  Appropriately qualified welfare services in Robinvale that supported the adoption, are also satisfied that it would be in the best interest of the infant, Sione, to live with Mr and Mrs Lavelua in the home that they own in Robinvale. 

13.     Sione was adopted with the consent of his biological mother.  Denying him the right to remain in Australia with his adoptive parents would not be in his best interests.  Being forced to return to Tonga would be unconscionable.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Date of Hearing  21 April 2010
Date of Decision  21 April 2010
Advocate for the Applicant          Mr T Lavelua
Advocate for the Respondent       Ms A Linacre, Clayton Utz