MWANZA (MIGRATION)

[2017] AATA 1077

MWANZA (MIGRATION) [2017] AATA 1077 (19 JUNE 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms LINDA MWANZA

VISA APPLICANT:  Miss SALOME KASONGO

CASE NUMBER:  1609824

DIBP REFERENCE(S):  CLF2016/16262

MEMBER:Kira Raif

DATE:19 June 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 visa applicant meets the following criteria for a Subclass 802 visa:

·cl.802.213 of Schedule 2 to the Regulations

Statement made on 19 June 2017 at 3:16pm

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 – Adoption – Customary adoption took place many years ago – No formal adoption until much later in 2012 – Sponsor unaware at time of Department decision that formal adoption had taken place – Supporting evidence provided later indicated that formal adoption had occurred

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.04, Schedule 2, cl 802.212, cl 802.213, cl 802.216, cl 802.226A

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 Immigration on 14 June 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 14 March 2016. The delegate refused to grant the visa on the basis that cl.802.213 was not met because the delegate was not satisfied the applicant met the adoption requirements. The applicant seeks review of the delegate’s decision.

3. The application for review was made by the child’s adoptive mother. The Tribunal is mindful that it is the applicant, and not her mother, who has standing to apply for review. Nevertheless, the Tribunal is satisfied that it was always the intention of the applicant to apply for review of the decision and that there was substantial compliance with the application form. The Tribunal finds that it has jurisdiction to review the matter.

4. The applicant appeared before the Tribunal on 19 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s partner. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. 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). The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (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.

6. 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.

   Adoption criteria

7. The applicant provided to the Tribunal a copy of the primary decision record. The applicant stated in her application that she has been cared for by the sponsor since 2006. She indicates that the sponsor travelled to Australia in 2012 and due to complications with the pregnancy, applied for the Partner visa in Australia. The applicant outlined the financial support she has received from the sponsor. The Tribunal accepts that the sponsor has been caring for the applicant since 2006 and has provided financial support to the applicant.

8. In her written submission dated 10 March 2016 the applicant stated that the sponsor is her aunt and she has been raised by the sponsor since 2006. The applicant states that the sponsor migrated to Australia in 2012 and before that, she applied to adopt the child formally, with consent of the child’s biological parents. The sponsor left Zambia before the process was completed. The applicant argues that the sponsor has parental rights in relation to her. Her representative claims that the idea of formal adoption was foreign to Zambia custom and culture and a member of extended family who looks after the child has an agreement with the biological parents of the child. The representative submits that there was customary adoption. The applicant provided with her application a copy of the Adoption Order issued by the Ministry of Community Development, Mother and Child Health in Zambia in October 2012 stating that a Notice to Adopt has been received. The applicant has provided to the Tribunal a copy of the Adoption Order dated October 2012.

9. The delegate accepted that the child was customarily adopted but found that formal adoption was available, so that the adoption did not meet the requirements of r. 1.04. In her submission to the Tribunal dated 5 July 2016 the applicant notes that the adoption order was made in October 2012 but did not become available until after the primary decision was made.

10. The applicant provided to the Tribunal a copy of the Adoption Order. In January 2017 the Tribunal arranged for this document to be verified. In May 2017 the Tribunal was informed that the document could not have been verified because the relevant court could not be contacted. The Department provided the following additional information concerning Zambian adoptions and the Adoption Order presented by the visa applicant:

    Based on information from internet background checks and the Adoption Act Chapter 54 of Zambia which outlines the process of adoption, Harare Post has the following concerns in relation to the Adoption Order copy provided by the applicants:

    1)According to the Act Section II Subsection 5 (a) : “ An adoption order shall not be made in respect of an infant unless the applicant,  has at least three months before the date of the order, notified the Commissioner (For Juvenile Welfare)  of the intention to apply for an adoption order in respect of the infant.”

    -In light of this information, it is highly unlikely that Linda Mwanza and Ashton Wren would have been granted an Adoption Order on 25 October 2012; only 17 days after the Juvenile Inspector noted the 8^th of October 2012 as the effective date of notice to apply for adoption.

    2)Other than a signature, the Court Order does not state who the presiding Magistrate was for the case and this is inconsistent with other genuine Zambian Court Orders that Harare Post has had verified.

    3)According to the Act Section III Subsection 11, the Registrar General maintains an Adoption Register which contains information on all adopted persons. Any person can obtain a certified copy of an adoption entry from the Registrar General’s Adopted Children Register via the Registrar General’s Offices.

    -In light of this information, it is expected that the applicants should be able to obtain a certified copy of the adoption entry from the Zambia Registrar General’s Offices in order further back their adoption claims.

    4)It is also reasonably expected that applicants with a vested interest in the adoption case would have actively followed up with Kabwe Subordinate Court in order to find out what the status of their application was. In this case the applicants only started following up on the adoption order in February 2016, yet they had made their application in October 2012; this raises serious concerns about the credibility of their claims.

11. The Tribunal wrote to the review applicant pursuant to s. 359A of the Act seeking her comments on the above information. In her response to the Tribunal’s correspondence, received on 5 May 2017, the applicant provided a copy of the Adoption order and a medical report for the sponsor confirming her ability to care for her family. With respect to the concerns set out by DIBP officer, the sponsor states that she started the adoption process in 2009 using Legal Aid. The papers were lost and the process started again in late 2011 or early 2012 through Social Welfare. She approached the Social Welfare Department and Court several times, the Juvenile Inspector signed the Notice to Adopt on 8 October 2012 and on 24 October the adoption order was granted. The sponsor states that the child was in her care since 2006 as the child’s biological parents were no longer together, formed new relationships and the child was not part of these families. The sponsor stated that she did not follow up on adoption as she moved to Australia in 2012 and had a difficult pregnancy, then applied for the Partner visa which was not granted until May 2014. These events distracted the family from the adoption process. After the child was unable to obtain the Student visa, she applied for the Child visa on the basis of customary adoption and it was not until the request was made to produce evidence of formal adoption that the review applicant made another application for a formal adoption order. The applicant submits that given the time that passed from the first application made in 2009 and the second application made in 2012, the court waived the minimum three months requirement. The applicant notes that the Adoption Order Certificate does specify the name of the magistrate. The applicant also notes that a copy of the adoption entry from the Register was provided to the Tribunal. 

12. On 19 June 2017 the review applicant provided further written evidence to the Tribunal including a statement from the Department of National Registration of Births, Marriages and Deaths in Zambia dated 15 June 2017 confirming that the visa applicant was adopted by the sponsor and the adoption order was registered in the relevant Register. The review applicant presented a copy of the Adoption Order.

13. The oral evidence to the Tribunal is that when the application was made, the sponsor was unaware that the formal adoption took place because she was heavily pregnant at the time and came to Australia. After the visa was refused, they became aware of the paperwork and confirmation that the formal adoption had gone through became available a few days after the primary refusal.

14. The Tribunal acknowledges the delegate’s concerns in relation to the adoption but is mindful that additional evidence is before the Tribunal that was not before the delegate. In particular, the Tribunal places weight on the confirmation from the relevant authorities in Zambia confirming that the formal adoption took place. The Tribunal has considered the advice from the Department, received on 3 May 2017 but the concerns raised in that advice have been explained by the sponsor to the satisfaction of the Tribunal. There is nothing to suggest that the presented documentary evidence of the formal adoption is invalid or inaccurate.  

15. The Tribunal generally found the sponsor to be a truthful witness. She was familiar with the adoption process and the Tribunal is satisfied that the sponsor did engage in that process. The Tribunal found her oral evidence to be persuasive. Having regard to the review applicant’s oral evidence and the various documents relating to the adoption, presented throughout the application process and to the Tribunal, the Tribunal is satisfied, on balance, that the visa applicant was formally adopted by the sponsor. The Tribunal is satisfied she is an adopted child of the sponsor. The Tribunal is satisfied that the applicant was under 18 when the adoption took place. The applicant meets cl. 802.213(1).

16. The sponsor’s evidence to the Tribunal is that she was granted the permanent visa (in Subclass 801) in 2014. The Tribunal is satisfied that the sponsor was not an Australian citizen or holder of a permanent visa or a New Zealand citizen when the adoption took place but subsequently became an Australian permanent resident. The Tribunal is satisfied the applicant meets cl. 802.213(2) and cl. 802.213.

    Conclusion

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

    DECISION

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

    ·cl.802.213 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member