McMillan (Migration)

[2023] AATA 3783

McMillan (Migration) [2023] AATA 3783 (2 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Deborah Anne McMillan

VISA APPLICANT:  Mr Kingston Waweru

REPRESENTATIVE:  Ms Catherine Follett

CASE NUMBER:  2309532

HOME AFFAIRS REFERENCE(S):          BCC2022/3635522

MEMBER:Kira Raif

DATE:2 November 2023

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 02 November 2023 at 12:33pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – mother deceased and father unknown – sponsor appointed legal guardian and granted custody (but not sole), care and control of applicant – legal guardianship not customary adoption if guardian not related to child – moratorium on adoption by foreigners not in place at time of guardianship – new legislation allows adoption but moratorium still in place – adoption not limited to provisions of home country – significantly close relationship between applicant and sponsor – full and permanent parental rights – sponsor’s residence overseas for 12 months at time of application – sponsor’s long residence in applicant’s country, with some returns to Australia for work and family, and evacuation during COVID pandemic – delays in process and hardship if visa not granted – no provision for waiver – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.04(1)(c), (2)(a), (b), (d), Schedule 2, cls 102.211(2)(b)(ii), (c)(ii), (d), 102.213
Family Law Act 1975 (Cth), ss 61B, 61CC(3), 61DA

CASES
B v B: Family Law Reform Act 1995 (1997) FLC 9
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 22 June 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 is a national of Kenya, born in April 2006. He applied for the visa on 1 September 2022. The delegate refused to grant the visa on the basis that cl. 102.211 was not met as the delegate was not satisfied the visa applicant was an adopted child of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision. There is a separate decision and a separate application for review in relation to the visa applicant’s brother.

3. The review applicant appeared before the Tribunal on 11 and 24 October 2023 to give evidence and present arguments. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained three subclasses: subclass 101 (Child); subclass 102 (Adoption) and subclass 117 (Orphan relative) – Item 1108 of Schedule 1 of the Regulations. The applicant sought to be assessed against the subclass 102 (Adoption) visa.

5. In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). One of the issues in question in this case is cl 102.211 which is set out below:

   (1)         The applicant meets the requirements of subclause (2), (3), (4) or (5).

   (2)         An applicant meets the requirements of this subclause if:

   (a)the applicant has not turned 18; and

   (b)the applicant was adopted overseas by a person who:

   (i)was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and

   (ii)had been residing overseas for more than 12 months at the time of the application; 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 lawfully acquired full and permanent parental rights by the adoption.

   Reg 1.04 Adoption

   (1)A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

   (a)formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

   (b)formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

   (c)other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

   (2)For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

   (a)the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

   (b)the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

   (c)the Minister is satisfied that:

   (i)formal adoption of the kind referred to in paragraph (1)(b):

   (A)was not available under the law of the place where the arrangements were made; or

   (B)was not reasonably practicable in the circumstances; and

   (ii)the arrangements have not been contrived to circumvent Australian migration requirements.

6. Clause 102.213 relevantly requires that the laws relating to adoption of the country in which the child is normally resident have been complied with.

   Primary decision

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant claimed to be the adopted child of the sponsor. It was claimed that a formal adoption was not possible and the visa applicant relied on the customary adoption provision. In relation to the circumstances of the adoption, the visa applicant claimed that his mother Philomena Ngunge Maingi died in July 2009 and his father is unknown and his relatives had relinquished all care of him and he was taken into care by the authorities. The visa applicant claimed that the sponsor became his full-time carer and parent on 22 January 2011 when she was granted temporary guardianship for six months by the Kenyan authorities. It is noted that the sponsor was granted the guardianship order by the Kenyan Children’s Court in April 2013, granting her legal guardianship and custody of the visa applicant and it states that she is able to apply for adoption.

8. The delegate referred to the Kenyan Children’s Act 2001 that has been in operation since 2001. The legislation provides for adoption of Kenyan children by foreigners. The delegate stated that the Kenyan law allows adoption by foreigners but the process must be conducted using certain adoption agencies. The delegate states that in November 2014 the Kenyan government placed a moratorium on adoption by foreigners and made it impossible for adoption agencies to facilitate adoptions of Kenyan children by foreigners. The delegate notes that the new Children’s Act 2022 allows for adoption of Kenyan children by foreigners but the moratorium is still in place, so while the adoption of children by foreigners is technically legal, it is practically impossible.

9. The delegate notes that the Children’s court in Kenya has recognised the adoptive relationship between the applicant and the sponsor and granted the sponsor full parental custody, responsibility and guardianship of the applicant to the sponsor. The delegate acknowledges that the sponsor has complied with the Kenyan laws regarding adoption. The delegate also accepted that the sponsor had provided physical, emotional and financial support to the applicant since the visa applicant began living with her and that their relationship is closer than any other relationship the visa applicant has. The delegate accepted that their circumstances comply with the Australian Family Law Act and are comparable with full and permanent rights as defined by the Family Law Act and satisfies the requirements for customary adoption of the Migration Regulations.

10. The delegate states that the following information was obtained in February 2023

    a.The 2013 Children’s Court ruling appoints the sponsor as the legal guardian of the visa applicant and advises that the sponsor was granted custody, care and control of the minor. However, the ruling did not provide sole custody of the visa applicant to the sponsor.

    b.The guardianship order can specify that a child can be removed from Kenya for a specific period but does not allow the guardian to remove the child permanently from Kenya. The sponsor could decide where the visa applicant is to reside permanently if granted sole custody.

    c.The sponsor was required to obtain court orders allowing the visa applicant to travel outside of Kenya in 2015 and 2017, suggesting the 2013 Ruling did not allow the sponsor to take the visa applicant outside of Kenya temporarily or permanently

    d.There were no hindrances in finalising formal adoptions by foreigners between 2011 and 2014. The moratorium on adoptions by foreigners introduced in 2014 continues to be in place after the Children’s Act 2022 came into effect.

11. Customary adoption is within the cultural norms in Kenya but appointing a legal guardian for a minor does not constitute customary adoption. Customary adoption occurs if a child is adopted by a family member and legal guardianship does not equate to customary adoption if the guardian is not related to the minor. In this case, the delegate found that the sponsor does not meet the requirements for customary adoption (there is no familial relationship between the visa applicant and the sponsor).

12. The delegate wrote to the visa applicant seeking comments on the above information. In his response dated 13 April 2023 the visa applicant stated the following

    a.Formal adoption is not available or is not reasonably practicable, given the moratorium and the visa applicant agreed that formal adoption has not been demonstrated under either the Australian law or the Kenyan law.

    b.The repeated orders by the Kenyan courts confirming the sponsor’s care and custody of the visa applicant suggest the courts have developed their own ‘usual practice’ or ‘recognised custom’ in relation to the adoption arrangements by foreigners

    c.The arrangements in this case do not meet the new Kenyan Children’s Act definition of customary adoption  but it is necessary to consider the Australian legal requirements for customary adoptions.

    d.The visa applicant has been in the sponsor’s care since 2011 and there is no stronger relationship between the visa applicant and any other person. The visa applicant has no family relationships since the Death of his mother and there is no usual method of organising an informal adoption. The Kenyan courts have created their own practice of giving full extent of parenting / guardianship / custody rights where it is in the best interests of the child.

    e.The Kenyan authorities gave custody of the visa applicant to the sponsor and that arrangement will continue until the child reaches 18.

13. The delegate found that the raising of the visa applicant by the sponsor does not meet the Kenyan Children’s Act’s definition of customary adoption and the presented documents do not signify customary adoption in Kenya. The delegate notes that customary adopting occurs when a member of the family of the child, including extended family, adopts the child which is not the case here. The delegate found that while the sponsor was granted guardianship of the visa applicant, guardianship does not equate to customary adoption if the guardian I not related to the minor, as is the case here. The delegate noted that the sponsor was not given ‘sole custody’ of the visa applicant (because she is not able to decide where the applicant resides permanently).

14. The delegate also notes that it must be demonstrated that formal adoption could not be arranged. In this case, it was claimed that formal adoption by a foreigner is possible under Kenyan law but the moratorium against formal adoption was put in place in 2014, three years after the visa applicant came into the care of the sponsor in January 2011 and in April 2013 when the guardianship was given to the sponsor, the court stated that the sponsor could apply for adoption. The delegate found that at the time the sponsor was given permission to adopt the visa applicant, the moratorium was not yet in place. The delegate formed the view that formal adoption was available and practicable, albeit a lengthy process and evidence has not been provided to suggest that formal adoption could not be utilised in the years before the moratorium was put in place. The delegate was not satisfied that the sponsor has full and permanent parental rights of the visa applicant, that the formal adoption was not available or not practicable. The delegate was not satisfied the visa applicant met cl. 102.211(2)(d) and other provisions of that clause.

    Is the visa applicant an adopted child of the sponsor?

15. There is no evidence that a competent authority in the overseas country has allocated the applicant for prospective adoption and that such arrangements are in accordance with the Adoption Convention or of a kind that may be accorded recognition. The Tribunal is not satisfied the visa applicant meets cl. 102.211(4). There is no evidence that the applicant was adopted in accordance with the Adoption Convention. The Tribunal is not satisfied he meets cl. 102.211(5). The is no evidence that a competent authority in Australia has approved the prospective adoptive parent as suitable. The Tribunal is not satisfied the applicant meets cl. 102.211(3).

16. The applicant seeks to rely on cl. 102.211(2). The visa applicant was born in 2006 and was under the age of 18 when the application was made. He meets cl. 102.211(2)(a).

17. The primary decision record indicates that the sponsor is an Australian citizen by birth and has been in Australian citizen at all relevant times. The 12 months overseas residence requirement is addressed below. For the purpose of cl. 102.211(2)(b), the Tribunal must consider whether the visa applicant was adopted by the sponsor in accordance with r. 1.04.

18. It is not in dispute that there is no formal adoption either under the Australian laws or under the law of Kenya. The visa applicant cannot meet r. 1.04(1)(a) and (b). The visa applicant submits that other arrangements had taken place in the nature of adoption, for the purpose of r. 1.04(c) and in accordance with r. 1.04(2).

19. The delegate was not satisfied that the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter, noting in particular that the recognised custom or usual practice, and the Children’s Act, relate to adoption of children by family members, including by members of extended family. The review applicant’s evidence is that in this case, the extended family of the visa applicant is not available, or is unable and unwilling to take care of the child.

20. The review applicant concedes that she does not meet the definition of customary adoption as set out in the present Kenyan legislation. Her representative submits that while the new Children’s Act 2022 refers to customary adoption as being adoption by family members, that was not the requirement in the old Act when the adoption took place and there was no requirement for the sponsor to be related to the visa applicant.

21. The Tribunal is of the view that the definition of adoption in r. 1.04 does not presuppose, and is not limited to, adoption as defined by the legislation in the child’s country of residence (that is, the definition of customary adoption in the Kenyan Children’s Act) rather than the usual custom or practice in the adoptee’s country of residence. The very purpose of that legislative provision is to allow customary adoptions where adoptions that are recognised in the law of the adoptee’s country, are not available. The Tribunal is of the view that the customary adoption must be in accordance with the requirements of the Migration Act rather than the local legislation. That means, there is no requirement (as set out in the Kenyan Children’s Act) that the customary adoption can only take place among family members.

22. Other than the requirements of the Kenyan Children’s Act, there is nothing to suggest that customary adoption must be among family members. The evidence before the Tribunal indicates that  there were adoption of children by foreigners, resulting in the introduction of the moratorium and later the amendments to the Children’s Act. The Tribunal is satisfied, on balance, that the adoption of the visa applicant was made in accordance with the usual practice or a recognised custom in the culture of the adoptee and the adopter (noting that this needs not accord with the legislative requirements set out in the Kenyan legislation). The visa applicant meets r. 1.04(2)(a).

23. As noted above, the delegate accepted that the child – parent relationship between the visa applicant and the sponsor (adopter) is significantly closer than any such relationship between the visa applicant and any other person. In her submission of 4 October 2023 the review applicant provided multiple statements, including from the visa applicant, the review applicant’s relatives and friends, concerning her relationship with the child. The Tribunal accepts, as did the delegate, that the child-parent relationship between the visa applicant and the review applicant is significantly closer than any relationship between the visa applicant and any other person. The Tribunal is satisfied that the requirements of r. 1.04(2)(b) are met.

24. The Tribunal has considered whether the formal adoption was not available or not reasonably practicable. The delegate was not satisfied that formal adoption was not available or was not reasonably practicable. This is because the adoption took place in 2011 and the moratorium did not come into effect until 2014. However, the delegate also acknowledged that the formal adoption is a lengthy and complex process and that the sponsor did approach a lawyer to obtain advice about adoption. In her submission to the Tribunal of 4 October 2023 the review applicant provided evidence of her engagement with Little Angels Network to arrange the formal adoption. The review applicant provided evidence of having prepared documents in 2015 in relation to the formal adoption process. The review applicant also states that she continued to engage with the Kenyan lawyers to see if formal adoption could take place.

25. In oral evidence the applicant’s representative confirmed that in 2011 she was a tourist in Kenya and she was trying to determine how to progress the paperwork and the adoption process. The review applicant told the Tribunal that she initially took the children on a short term agreement for six months and, initially, it was not her intention to adopt the children. She did not consider longer term care and the legal adoption as she was hoping there would be other arrangements in place and it was around 2013 that she realised she would need to maintain the parental arrangement and that is when she started the paperwork. The review applicant said that in 2011 she did the adoption paperwork only to ensure there were no difficulties with the local authorities and her intention was for a short term foster arrangement while the decision to adopt and maintain the long term parental responsibility did not arise until a couple of years later.

1. The Tribunal acknowledges that  the guardianship was arranged in April 2013. The evidence indicates that around that time, the review applicant commenced the process of formal adoption by seeking advice from the lawyers and commencing the paperwork. The Tribunal is satisfied that the sponsor did take steps to support the formal process before the formal arrangements ceased to be available in 2014. The circumstances surrounding the adoption, and the subsequent events, are described in the numerous statements provided to the Tribunal and the Tribunal accepts the evidence in these materials. There is no suggestion that the sponsor deliberately delayed the process. It appears that she took all reasonable steps but was not able to complete the process because of the change in government policy.

2. It is not in dispute that by 2014 formal adoption was no longer possible due to the moratorium. The Tribunal is satisfied that formal adoption was not available under the law in place where arrangements were made and that formal adoption was not reasonably practicable between 2013 (when the guardianship was arranged) and 2014 due to the delays with the process. The Tribunal is satisfied that the visa applicant meets r. 1.04(2)(c)(i). The Tribunal finds that the visa applicant meets the requirements of r. 1.04 and cl. 102.211(2)(b).

3. The Tribunal is satisfied, having regard to the length of the review applicant’s residence in Kenya, that the arrangements had not been contrived to circumvent the Australian immigration requirements and the visa applicant meets r. 1.04(2)(c)(ii). The Tribunal finds that the visa applicant meets cl. 102.211(2)(c).

   Full and permanent parental rights

4. The Tribunal has considered whether the review applicant had acquired full and permanent parental rights by the adoption.

5. There is no judicial authority on cl.102.211(2)(d) and the definition of rights. Departmental policy notes that orders that grant only guardianship, custody, or day-to-day parental responsibility would not satisfy the requirement that the adopting parent has lawfully acquired ‘full and permanent parental rights’, but that orders that conferred a right to decide where the child shall live may satisfy this.

6. In this case, the delegate noted that the guardianship order does not allow the review applicant to take the child out of the country permanently and to determine where the child is to live. The representative submits that the adoption papers do provide the review applicant with that right and there are no other authorities that have the right to make that determination. It is submitted that there was no requirement for the children to seek approval for any decisions and there are no welfare checks or other processes to check on the children’s welfare and well-being. The representative notes that the review applicant has been allowed to bring the children to Australia in the past on visitor visas in the past.  The representative submits that there are no other orders that would have been available to the courts and the courts have done everything they could to give the sponsor rights and responsibilities in relation to children.

7. The review applicant explained to the Tribunal that she did obtain a court order before her son could travel to Australia on a visitor visa but she did so on advice of her lawyer to facilitate the grant of the visa with the Australian authorities and she did not believe it was a requirement of the Kenyan law that such approval be obtained.

8. The Family Law Act 1975 (‘the FLA’) does not discuss ‘guardianship’ or ‘custody’ in relation to parenting arrangements or orders, following legislative reform in 1995. It also omits any references to parenting rights. The FLA instead requires that when making a parenting order, the issue of parental responsibility must be dealt with, pursuant to s.61DA. Parental responsibility is broadly defined in s.61B as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Shortly after the 1995 reforms, the Full Court of the Family Court in  B v B: Family Law Reform Act 1995 (1997) FLC 92 discussed the definition of parental responsibility, noting that it would appear to cover the scope of guardianship and custody under the previous Part VII of the FLA, and may be wider.

9. The FLA connects parental responsibility to decisions in relation to the child on issues that are major long-term issues. These issues are defined in the FLA as issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about: (a) the child's education (both current and future); and (b) the child's religious and cultural upbringing; and (c) the child's health; and (d) the child's name; and (e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

10. The connection between parental responsibility and decisions about major long term issues is also made in s.60CC(3), which lists additional considerations in how a court determines what is in a child’s best interests. This includes the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child.

11. In the Tribunal’s view, the broad duties, powers, responsibilities and authority conferred by ‘parental responsibility’ in the FLA, particularly in relation to decision-making on issues that are major long term issues, are comparable to the ‘full and permanent parental rights’ discussed in cl.102.211(2)(d).

12. The evidence before the Tribunal indicates that the sponsor has legal custody and parental responsibility for the visa applicant. She has taken care of the visa applicant, made decisions about the child’s schooling, health, living arrangements in Kenya, the child’s welfare and social interactions. As for the right to take the child to live overseas, the review applicant’s evidence is that she had previously obtained a court order for Australian migration purposes and not because it was a requirement of the Kenyan courts and she suggests that she does have the right to desire where the child is to live on a long term basis.

13. The Tribunal is satisfied the sponsor has been given a right to make decisions on major long-term issues in relation to the visa applicant, including the child’s education, health, upbringing, travel and place of residence. The Tribunal is of the view that such rights are consistent with the nature of ‘full and permanent parental rights’ described in the FLA and contemplated by cl. 102.211(2)(d). The Tribunal finds that the visa applicant meets cl. 102.211(2)(d).

    Was the sponsor resident overseas for 12 months at the time of the application?

14. Clause 102.211(2)(b)(ii) requires the applicant to have been adopted overseas by a person who had been residing overseas for more than 12 months at the time of the application. The operation of this provision was considered by the Federal Court in Nguyet Huong Phung v MIEA [1997] 373 FCA (13 May 1997), when the Federal Court interpreted regulation 46(a)(ii)(A), which applied at that time and which is in identical terms to subclause 102.211(2)(b)(ii), as follows:

    It was submitted on behalf of the applicant that this requirement is satisfied where the
    “adoptive parent” has resided overseas for more than twelve months at “any time before” the application. This construction of reg 46(a)(ii)(A) is rejected. On its proper construction, it is necessary that for at least the twelve months prior to the time of the application, the applicant be residing overseas. It is not sufficient if the applicant has had, at some earlier time, a period of more than twelve months overseas residence.

15. In her submission to the Tribunal the review applicant confirmed that in the 12 months before the application was made, she had spent three and a half months in Australia as she was evacuated on a rescue COVID flight in August 2021 and she returned to Kenya in January 2022 and stayed there until September 2022. The review applicant states that she had been living in Kenya in the relevant period except for the approximately 3.5 months period when she was evacuated on a COVID flight. In her submission of 27 October 2023 (and the declaration of 26 October 2023) the review applicant also refers to travel restrictions due to Covid and the circumstances of her residence in Kenya and visit to Australia.

16. The review applicant refers to the Departmental policy which does not require the period of overseas residence to be uninterrupted. The review applicant states that she has been living in Kenya since 2010, her home is there and she returns to Australia to see her family and earn money to fund her life in Kenya.

17. The Tribunal accepts that the legislation does not require continuous and uninterrupted overseas residence in the 12 months before the application and the policy refers to trips to Australia being acceptable. The Tribunal accepts that the visa applicant has been residing in Kenya since 2010 and while the length of the review applicant’s residence in Kenya may be relevant in establishing where her place of residence is, Nguyet Huong Phung makes it clear that earlier residence would not be sufficient to meet the 12 months overseas residence requirement.

18. In this case, it is not in dispute that the review applicant had spent more than three months in Australia in the 12 months before the application was made. The review applicant states that  she was evacuated on a Covid rescue flight and travel to Australia was limited at the time, but it is not apparent that she was forced to return to Australia due to Covid, or that she had no option of remaining in Kenya. The review applicant may have elected to return to Australia due to Covid, but the Tribunal does not consider that Covid and resultant evacuations from Kenya meant that the review applicant was unable to remain in Kenya.

19. The review applicant submits that her home is in Kenya and that she returns to Australia regularly to earn money for her residence in Kenya and also to visit her family, as she has no other means of supporting herself in Kenya. The review applicant provided to the Tribunal a statement from her employer in Australia confirming the offer of regular employment during the review applicant’s visits to Australia and the possibility of future employment. She told the Tribunal that she is on a casual contract and contacts the hospital where she works whenever she intends to return to Australia and is offered the job.

20. The evidence indicates that the review applicant maintains employment links and family connections in Australia. Her plan is to reside in Australia, with the visa applicants. In terms of duration of her stay in Australia, the review applicant’s evidence is that she had spent about 3.5 months in Australia in the 12 months before the application was made. This is a lengthy stay, in the Tribunal’s view, and it is noteworthy that the review applicant had spent more than 25% of the relevant period in Australia.

21. The review applicant argues that her presence in Australia – which arises out of necessity – is not inconsistent with the Departmental policy which allows visits to Australia. The Tribunal acknowledges that the policy does provide that visits to Australia are acceptable, and the Tribunal accepts that the ordinary meaning of the term ‘reside’ would not require uninterrupted stay overseas and would allow for some time spent in Australia. However, the Tribunal does not consider that a stay of 3.5 months could be considered brief or incidental (as the Policy suggests). Rather, it was a regular arrangement to enable the review applicant to have funds to support her stay in Kenya and to visit family in Australia. The ordinary meaning of the word ‘resident’ encompasses physical residence in a place, as well as other factors. In this case, the review applicant had spent more than a quarter of the relevant period in Australia, in a single continuous visit, was here for the purpose of employment and she has strong links in Australia, despite generally residing in Kenya.

22. The Tribunal accepts the review applicant’s evidence about the need for her to remain in Australia to earn funds, the high cost of travel preventing more frequent trips to Australia and her evidence about the length of her stay in Kenya and settlement there. The Tribunal also accepts the review applicant’s evidence about her settlement in Kenya, her charity work and the fact that she has property, ID cards and other attributes of settlement in that country. However, while the review applicant’s overall lengthy stay and settlement in Kenya is relevant in establishing where she was residing, the legislation imposes an additional requirement for the sponsor to reside overseas in the 12 months before the application was made.

23. In the Tribunal’s view, the ordinary meaning of the term ‘reside’ requires consideration of physical presence in a particular place, as well as other factors. In circumstances where the review applicant had spent a significant proportion of that time in Australia, has strong family and employment links to Australia and her visit to Australia was part of a regular annual pattern of spending a proportion of the year in Australia to earn money, the Tribunal is not satisfied that the review applicant was resident overseas for at least 12 months before the application. 

24. The Tribunal acknowledges and accepts the review applicant’s evidence about her care for the children, lack of other visa options and the hardship that would result from the visas not being granted. The Tribunal does not consider that 102.211(2)(b)(ii) allows for the waiver of the 12 months requirement on the basis of compassionate, or any other, circumstances.

25. The Tribunal is not satisfied the visa applicant meets cl. 102.211(2)(b)(ii) and cl. 102.211. The Tribunal finds that the visa applicant does not meet the requirements for the grant of the Adoption visa.

26. The Tribunal is not satisfied the visa applicant is a relative of the sponsor (other than through adoption). The visa applicant does not meet cl. 117.211 and the requirements for the grant of the Orphan Relative visa.

27. For the purpose of the Child visa, while the Tribunal accepts that the child has been adopted by the sponsor, the Tribunal finds that at the time of adoption the sponsor was an Australian citizen and the visa applicant does not meet cl. 101.211(1)(c)(ii). He does not meet the requirements for the grant of the Child visa.

28. The Tribunal has had regard to the applicant’s circumstances. The Tribunal accepts that the review applicant has been providing parental care to the visa applicant for a period exceeding 12 years and that there are no other adults who are able and willing to provide such care. The Tribunal has formed the view that the visa applicant’s and the review applicant’s relationship is closer than the visa applicant’s relationship with any other person. The Tribunal has formed the view that there are strong compassionate circumstances in this case. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention. The Tribunal acknowledges the review applicant’s submission regarding the delays in the process and the effect of the recent decision in Davis v Minister for Immigration. These matters are outside of the Tribunal’s control.

    Conclusion

29. For the reasons given above the Tribunal finds the visa applicant does not satisfy the requirements of cl.102.211. The Tribunal has also decided that the visa applicant does not meet the requirements for the grant of the other visas in Class AH.

    DECISION

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

    Kira Raif
    Senior Member