Minniecon (Migration)

[2017] AATA 2990

Minniecon (Migration) [2017] AATA 2990 (5 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master William Michael Minniecon

CASE NUMBER:  1705439

DIBP REFERENCE(S):  CLF2016/45411

MEMBER:Helena Claringbold

DATE:5 December 2017

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.802.213(5) of Schedule 2 to the Regulations; and

·cl.802.215 of Schedule 2 to the Regulations.

Statement made on 05 December 2017 at 12:58pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 – Adoptive parents not resided overseas more than 12 months at time of adoption – Circumstances of adoption – Contribution of adoptive parents to Australian and Vanuatu communities – Credible evidence – Compassionate circumstances why 12 months residency requirement should not apply  

LEGISLATION

Migration Act 1958

Migration Regulations 1994, Schedule 2, cls 802.212(1), 802.213, 802.213(5), 802.213(5)(a), 802.213(5)(b), 802.213(5)(c), 802.213(5)(d)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 July 2016, Master William Michael Minniecon, the visa applicant applied for a Child (Residence) (Class BT) visa.  The application was made on the basis of his relationship with Ms Sonia May Minniecon, the sponsor and adoptive parent.

2. On 2 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not satisfying cl.802.213(5) of the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied when the adoption took place, the adoptive parent had been residing overseas for more than 12 months.

3. 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).

4. On 4 December 2017, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Michael Smith, the sponsor’s spousal partner.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department file CLF2016/45411 folios numbered 1-102 and the Tribunal file 1705439, folios numbered 1-71 and the evidence given at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether at the time the adoption took place, the adoptive parent had been residing overseas for more than 12 months.

   Adoption criteria

8. 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.

   Clause 802.213(5)(a) provides that 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 a New Zealand citizen.

9. Sonia Minniecon was born in April 1972, in Mackay, Queensland.  She is an Australian citizen by birth. She was an Australian citizen at the time of adoption which took place on 23 February 2016 in Vanuatu.  The applicant, William Minniecon was born on 5 August 2014 in Vanuatu. On 1 April 2015, the sponsor was granted Vanuatu citizenship. The Tribunal is satisfied that William was adopted in an overseas country and that Sonia was an Australian citizen at that time.

   Clause 802.213(5)(c) provides that 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.

10. The evidence before the Tribunal is that approximately 14 years ago Sonia and Michael began a non-profit organisation in Vanuatu.  The organisation works in Australia and Vanuatu and aims to connect families and run various community projects.  Other information is that Sonia and Michael live approximately seventy five percent of their time in Australia and twenty five percent of their time in Vanuatu. At the Tribunal hearing Sonia and Michael explained that they have been travelling to Vanuatu for many years and for the last 14 years in connection with their organisation. They stated that they didn’t intend to adopt William.  However were approached by family to adopt him and after consideration took the decision to adopt. The Tribunal is satisfied that Sonia’s residence overseas was not contrived to circumvent the requirements for entry to Australia of children for adoption.

    Clause.802.213(5)(d) provides that 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.

11. After taking the decision to adopt William, Sonia and Michael received interim adoption orders on 23 November 2015.  On 23 February 2016, the Supreme Court of the Republic of Vanuatu issued the final adoption order: Case No. 15/9 SC/ADPT.  The adoption order stated that Michael Smith and Sonia Minniecon are William’s adoptive parents.The Tribunal is satisfied that Sonia and Michael lawfully acquired full and permanent parental rights by the adoption.

    Clause 802.213(5)((b) provides that 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.

12. On 23 February 2016, at the time of adoption, Sonia spent ninety six days outside of Australia and Michael spent ninety one days outside of Australia. Therefore, the adoptive parents had not been residing overseas for more than 12 months at the time of adoption. The Tribunal is not satisfied that Sonia had been residing overseas for more than 12 months at the time of adoption.

    Are there compelling or compassionate circumstances?

13. Sonia and Michael told the Tribunal that they believed they had done everything correctly.  They declared that they were unaware of the residency requirement and had no intention of adopting a child.  However, in 2013 Sonia’s niece fell pregnant. Her circumstances as a school student made it difficult for her to support herself and the child and the biological father had no interest in the child.  The girl’s family approached Sonia and Michael and asked that they adopt the child. Agreement was reached between the family and the chiefs of the village and Sonia and Michael that the best interest of the child was that he be adopted and William was traditionally adopted.  In November 2015, Sonia and Michael gained interim custody of William and in February 2016, legally adopted him.  Sonia and Michael told the Tribunal that they were focussed on ensuring that the adoption was completed in accordance with the legal requirements of Vanuatu and asked whether there were any requirements they should follow for Australia.  They said that they relied on assurances from Vanuatu authorities that they had followed all relevant procedures and were unaware of adoption protocol or requirements for Australia.

14. Other information is that Sonia works in a Managerial role delivering Community Development Programmes to the Cape York Communities of Aurukun and Coen.  These services began with Sonia as the only staff member four years ago. She now manages a team of thirty seven staff members who work with five hundred indigenous jobseekers.  She left her role for two months prior to bringing William to Australia.  However a longer absence would be prohibited because of her responsibility in delivering these services and maintaining a government contract.  Michael and Sonia founded Blackbird, a not-for-profit organisation more than ten years ago and incorporated it in 2011.  He stated that his absence from Australia would have seen the organisation close.  This would result in losing the income to run the organisation and deliver services and community projects into Australia and Vanuatu. He stated that he is responsible for the organisation in Australia including managing fifty indigenous jobseekers.  Other information is that Sonia and Michael supported William’s mother prior to and after the birth of William; and continue to support the family through harsh and difficult times resulting from Cyclone Pam and more recently as a result of poverty and difficult environmental conditions.

15. Sonia and Michael told the Tribunal that it was never their intention not to satisfy the Australian adoption requirements.  They said that realisation came to them about formal processes in Australia when they applied for Tourist visas for both William and his biological mother.  Up until that point, they stated, they assumed that the process they followed in Vanuatu was sufficient.  In hindsight they feel they should have been investigated what Australia’s laws required.  However at no time were their actions intended to circumvent matters. Sonia stated that William is an active boy who enjoys day care and family life.  Sonia and Michael said that they will always put William’s welfare before anything else. William lives with Sonia and Michael in Cairns and Vanuatu and they care for him as parents. The Tribunal was told that Sonia and Michael love William and he loves them as his parents. They have bonded as a family and will continue for the rest of their lives together.

16. Third party statements attest to Sonia’s managerial role delivering and of the difficulty in replacing her if she had to depart Australia.  They also attest to Michael’s director role in the not-for-profit organisation.  Other third party statements give evidence about Sonia’s and Michael’s work over many years and about their respective characters.

17. The Tribunal considered the evidence individually and as a whole, including the circumstances of the adoption of William and the valuable contribution Sonia and Michael make to the community in Australia and Vanuatu. Sonia and Michael satisfied the Tribunal that they are credible.  They have satisfied the Tribunal that, in this case, there are compassionate circumstances why the 12 months residency requirement should not apply.

    Accordingly, cl.802.213 is met.

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

    DECISION

19. 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.802.213(5) of Schedule 2 to the Regulations; and

    ·cl.802.215 of Schedule 2 to the Regulations.

    Helena Claringbold
    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.