NUTTALL (Migration)

[2020] AATA 540

NUTTALL (Migration) [2020] AATA 540 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zeetah Hadasah Milali NUTTALL

CASE NUMBER:  1804340

HOME AFFAIRS REFERENCE(S):          CLF2017/15092

MEMBER:Helena Claringbold

DATE:24 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 24 February 2020 at 7:49am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of sponsor – definitions of dependent child, step-child and adoption – sponsor married to child’s mother – customary adoption and order by district court in child’s home country, but not formal adoption proceedings in national court – relationship between sponsor and child – formal adoption proceedings commenced – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 5CA(1)(a)

Migration Regulations 1994 (Cth), rr 1.04, 103(b), Schedule 2, cll 802.212(1)(a), (1A), 802.313

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 10 February 2017, Miss Zeetah Hadasah Milali Nuttall (the applicant), applied for a Child (Residence) (Class BT) visa. The application was made on the basis that she is the adopted child of Mr Aaron John Nuttall, (the sponsor), who is the spouse of the applicant’s biological parent, Mrs Sonya Nuttall.

2. On 31 January 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant meets cls 802.212 and 802.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). The applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. On 21 January 2020, the applicant appeared before the Tribunal to give evidence and present arguments. Mr Nuttall, the sponsor, acted as the applicant’s representative in his capacity as parent/guardian. The Tribunal took evidence from Mr Nuttall on the visa applicant’s behalf. The applicant was also represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the dependent child of the sponsor.

   BACKGROUND ON THE EVIDENCE

7. Miss Nuttall, the applicant, was born in 2005 in Lorengau, Manus Island, Papua New Guinea. She first entered Australia in January 2013. She has one sibling who lives in Australia.

8. The sponsor was born in 1975 in Norseman, Australia and he currently resides in Australia.

9. Mrs Nuttall was born in 1981 in Lorengau, Manus Island, Papua New Guinea and she currently lives between Australia and Papua New Guinea. She first entered Australia in January 2013 and she is the holder of a Subclass 600 visitor visa.  

10. Mr Nuttall and Mrs Nuttall met in 2006.  They began living together in 2007 and married in 2012.

    CLAIMS AND FINDINGS

11. Regulation 1.03 of the Regulations defines ‘guardian’ in relation to a child, means as a person who:

    (a)has responsibility for the long-term welfare of the child; and

    (b)has, in relation to the child, all the powers, rights and duties that are vested by law or custom in the guardian of a child other than:

    (i)the right to have daily care and control of the child; and

    (ii)the right and responsibility to make decisions concerning the daily care and control of the child.

12. The applicant provided a court order and a certificate of customary adoption. The order was made on 2 November 2012, under the Customary Adoption Act 1969, between Mrs Nuttall and the sponsor in the District Court at Tabubil WP, Western Province, Papua New Guinea. It declared that the applicant was adopted on 10 February 2012 pursuant to the customary rites of the Chalapelau Clan, Los Negros Local Level Government, Manus Province.

13. The Tribunal is satisfied that the applicant has been customarily adopted by the sponsor and that the Court Order stated that the applicant enjoys all rights and privileges as a biological child of the sponsor. On that basis, the Tribunal is satisfied that the sponsor meets the definition of guardian in relation to the applicant, who at the time of the Tribunal hearing was 12 years old.  The Tribunal relies on the sponsor’s evidence regarding the review of the visa refusal. The Tribunal is satisfied the applicant has been provided a fair opportunity to present her case.

    The dependent child criteria

14. At the time of application and at the time of decision, the applicant must satisfy the requirements of the dependent child criteria.

15. Clause 802.212 of Schedule 2 to the Regulation requires that:

    (1)  The applicant:

    (a)  is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and (b)  subject to subclause (2), has not turned 25.

    (1A) If the applicant is a step-child of the person mentioned in paragraph (1)(a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.

    (2)  Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

16. ‘Step-child’ in relation to a parent, has the meaning set out in r.103 of the Regulations:

    (a)  a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or

    (b)  a person who is not the child of the parent but:

    (i)  who is the child of the parent's former spouse or former de facto partner; and

    ………

17. The evidence provided to the Department and the Tribunal is that the sponsor and Mrs Nuttall, have been in a partner relationship since 2007.  In 2012, they married and continue to be in a spousal relationship. The Tribunal accepts this evidence at face value. In this case, the applicant is the biological child of Mrs Nuttall. She is not the child of the sponsor’s former spouse or former de facto partner. Therefore the applicant does not meet the definition of step-child as defined in r.1.03(b) of the Act. As result, at the time of application the applicant does not meet cl.802.212 of Schedule 2 to the Regulations.

18. Child of a person has the meaning as set out in s.5CA of the Act

    (1)  Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a)  someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b)  someone who is an adopted child of the person within the meaning of this Act.

19. The Tribunal notes that although the Family Law Act 1975 does not define who is a ‘child’, a child-parent relationship under the Family Law Act 1975 generally refers to relationships between children and their biological parents. There is no evidence and no claims have been made that, the applicant is the biological child of the sponsor. Therefore, the applicant does not meet s.5CA(1)(a) of the Family Law Act 1975.

20. Adoption has the meaning as set out in r.1.04 of the Regulations as follows:

    (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.

21. On 21 August 2017, the Department wrote to the applicant requesting evidence that the applicant had been formally adopted by the sponsor and/or details surrounding a customary adoption.

22. The sponsor responded to this request and stated the following:

    ·In December 2006 the sponsor met Mrs Sonya Nuttall, the applicant’s mother, in Papua, New Guinea.  In August 2007, the sponsor began living with Mrs Nuttall, Miss Nuttall and Master Eliza Nuttall, her brother as a family. In May 2012, the sponsor and Mrs Nuttall (the parties) married.

    ·The sponsor’s employer in Papua New Guinea didn’t accept the children as the sponsor’s dependents. He was told that in order for the children to be recognised as his dependents he would be required to adopt them. The sponsor proceeded to adopt the children through the Papua New Guinea courts with a view to complete the adoption process in Australia.

    ·In July 2012, the adoption was finalised in the Tabuubil WP Court, in Papua New Guinea. The sponsor didn’t know the difference between a customary adoption and a formal adoption at the time, mainly because in Papua New Guinea there was only one option for adopting.

    ·Mrs Nuttall lives between Papua New Guinea and Manus Island as she and the sponsor have a house and small business. She travels between Manus Island and Cairns regularly mostly travelling on visitor visas. Miss Nuttall lives with the sponsor and Mrs Nuttall in Cairns and Master Nuttall has been in boarding school in Brisbane since 2013. The family continue to live together and Miss Nuttall is enrolled in school and participating in sport and outdoor activities.

    ·Other information provided by the applicant is a copy of a ‘Certificate of Birth Entry’.  This records that the applicant was born on 1 September 2005 in Papua New Guinea.  It gives details of her biological mother as Sonya Milali Suangin.  Her biological father is not listed. 

23. The sponsor’s evidence is as follows that; the applicant’s biological father left (the family home) seven months prior to the applicant’s birth. The applicant’s biological father is not recorded on the applicant’s birth certificate. The evidence is that the applicant was customarily adopted by the sponsor. In support of that claim the applicant provided copies of a court order and a certificate of customary adoption. The order is made on 2 November 2012, under the Customary Adoption Act 1969, between Mrs Nuttall and the sponsor in the District Court at Tabubil WP, Western Province, Papua New Guinea. It declared that the applicant was adopted on 10 February 2012 pursuant to the customary rites of the Chalapelau Clan, Los Negros Local Level Government, Manus Province.

24. In 2018, the applicant’s migration agent provided a letter from a lawyer in Papua New Guinea who stated the following: they are of the view that the adoption of the applicant is in compliance of sections ss.53 and 54 of the Adoption of Children Act 1968. The migration agent stated the following: by virtue of the adoption being sanctioned by the District Court all rights and interests of the biological father relating to the applicant are severed and the sponsor is recognised as her father. A copy of the Adoption of children Act 1968 has been provided. Sections 53 and 54 refer to adoptions by custom.  The adoption gives full parental rights to the sponsor.

25. However, the applicant was not adopted in Australia. Therefore the applicant does not meet r.1.04(1)(a) of the Regulations.

26. The Tribunal is satisfied that the applicant has been customarily adopted by the sponsor and that the Court Order stated that the applicant enjoys all rights and privileges as a biological child of the sponsor. However, Sections s.53 of the Adoptions of children Act 1968 refers to ‘Adoptions by Custom’. The evidence before the Tribunal is that a formal adoption has not taken place. There is also no evidence that the applicant’s biological father ceased by law to be recognised as the applicant’s biological father. Therefore, the applicant does not meet r.1.04(1)(b) of the Regulations.

27. As detailed in the delegate’s decision record and discussed with the sponsor at the Tribunal hearing, at the time the customary adoption took place, formal adoption was available in Papua New Guinea. There is no evidence that the applicant has been adopted formally under the Papua New Guinea, Adoption of Children Act 1968, or that an adoption order has been issued in the Family Court at a national level. Therefore, the applicant does not meet r.1.04(1)(c) of the Regulations.

28. The Tribunal accepts that the customary adoption of the applicant was made in accordance with a recognised custom in Papua New Guinea. Therefore, the applicant meets 1.04(2)(a) of the Regulations.

29. The sponsor told the Tribunal the following: that he and the applicant are mates and they love each other as parent and child. In September 2015, his employment finished in Papua New Guinea and he and his wife and the applicant returned to live in Australia. His wife lives between Australia and Papua New Guinea. She travels to Australia on Tourist visas and stays three months at a time. She then departs Australia and returns to Papua New Guinea and tends to the establishment of her and the sponsor’s business. She remains outside of Australia for a period of a few days to a few months, depending on the demands of the business. When she is in Australia she lives with the sponsor and the applicant. The applicant’s migration agent argues that as the applicant’s mother lives part of her time outside of Australia the applicant is significantly closer to the sponsor. The Tribunal accepts that the applicant is close to the sponsor and that he continues to provide her with significant amounts of financial assistance, love and support. However, other evidence is that the applicant’s mother continues to live at the same property as the applicant and the sponsor and shares responsibility for the applicant. Given the applicant’s biological mother's involvement with the applicant, the Tribunal is not satisfied that at the time of application the applicant's relationship with the sponsor was significantly closer than the applicant's relationship with his biological mother. The Tribunal is not satisfied that the child-parent relationship between the applicant and sponsor is significantly closer than any such relationship between the applicant and his biological mother, having regard to the nature and duration of the arrangements. Therefore, the applicant does not meet r.1.04(2)(b) of the Regulations.

30. Regulation 1.04(2)(c) requires that for a customary adoption to be recognised, formal adoption was not available under the law of the country where the customary adoption took place or formal adoption was not reasonably practicable in the circumstances of the specific case.

31. Country information before the Tribunal is that the Adoption of Children Act 1968[1] is Papua New Guinea’s adoption law.

    Papua New Guinea’s Adoption of Children Act 1968 enabled the making of adoption orders, often referred to as ‘statutory adoption’[2], and the making of the Adoption of Children Regulation 1969 (the Regulations), which regulate statutory adoption.[3] The Adoption of Children (Customary Adoption) Act 1969 gave, in the words of one National Court judge, statutory recognition ‘to the institution of customary adoption that has existed in Papua New Guinea for centuries’.[4] In Revised Laws which came into operation in 1982, the Adoption of Children Act 1968 and Adoption of Children (Customary Adoption) Act 1969 were consolidated into the 1982 Adoption of Children Act (Chapter 275) (the Act), which now sets out adoption laws.[5]

    Statutory adoption can only be effected by an adoption order of Papua New Guinea’s  National Court in respect of a child[6], made in proceedings instituted in that Court in accordance with the Act. The Court cannot make an adoption order unless, at the time the application for the order is filed in the Court, the applicant (or applicants, in the case of joint applicants) are ‘resident or domiciled’ in PNG and the child is ‘present in’ PNG. Where the Court is satisfied that these circumstances applied ‘within 21 days before’ the date on which the application was filed, it may, in the absence of evidence to the contrary, presume that the applicant/s were resident or domiciled in PNG and/or that the child was present in PNG, ‘as the case may be’, at the time of the application’s filing.[7] A legal textbook on PNG family law noted a 1985 case in which the judge held that, as ‘”residence”’ meant ‘”usual dwelling place”’ and implied a degree of permanence, an Australian man living in Australia and only visiting PNG to arrange an adoption did not satisfy the Act’s terms, though his co-applicant wife was domiciled in PNG and the child was present in PNG.[8]

    The Act makes provisions regarding the child to be adopted, the persons in whose favour an adoption order may be made, and the matters that the Court must satisfy itself of before making an adoption order.[9] For example, the Court shall not make an adoption order for a child who has not attained the age of 21 years unless a consent to the adoption has been given by the parents and guardians of a legitimate child not previously adopted, the mother and guardians of an illegitimate child not previously adopted, or the adoptive parents and guardians of a child previously adopted.[10] The Act provides that the Court shall not make an adoption order unless PNG’s Director of Child Welfare has made a written report to it concerning the proposed adoption and it, after considering the report and any other evidence before it, is satisfied of several specified circumstances, including having regard to any wishes ‘expressed by a person or guardian of the child, in an instrument of the consent to the adoption of the child, with respect to the religious upbringing of the child’.[11] The Act provides that an adoption order shall only be made ‘in favour of a husband and wife jointly’, unless the Court is satisfied that exceptional circumstances make it desirable to make an order in favour of one person. The Court shall not make an order in favour of one person if that person is married and is not living apart from their spouse.[12]

    Statutory adoption law at 1994 was described at length in a legal textbook on PNG family law principles.[13] The textbook noted that an adoption order severs, for almost all purposes, the legal ties between the child and its natural parents and makes the child the legitimate offspring of the adopting parents.[14]

    [1] ‘Papua New Guinea Consolidated Legislation. Adoption of Children Act 1968’, Independent State of Papua New Guinea, [1968,] Accessed 1 December 2013, on Pacific Islands Legal Information Institute (PacLII) website, CIS26777.

    [2] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 154 paragraph 6.3. See also ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925)

    [3] ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children Regulation 1969’ (as amended to 25 November 2006), Independent State of Papua New Guinea, Office of Legislative Counsel, PNG, 25 November 2006, on Pacific Islands Legal Information Institute (PacLII) website, 20190114145517

    [4] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 154 paragraph 6.2; cited unreferenced in ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925)

    [5] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 154 paragraph 6.3; cited unreferenced in ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925). It is noted in ‘The Status of Civil Registration and the Collection of Vital Statistics Through Alternative Sources in Papua New Guinea’ (Technical Papers Number 30), International Institute for Vital Registration and Statistics (IIVRS), July 1987, p.14 reference ‘9. Papua New Guinea, Adoption of Children Act, Chapter No. 275, 1982’, on UNSD United Nations Statistical Division website, CIS4BBA4BA90.

    [6] ‘ “child” means a person who has not attained the age of 21 years, or a person who has attained that age and in respect of whom an adoption order is sought or has been made’: Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) section ‘1. Interpretation’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [7] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) sections ‘2. Jurisdiction of National Court’ & ‘3. When jurisdiction may be exercised’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [8] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at pp. 154-169 paragraphs 6.4-6.32. In August 2018 the United States (US) Embassy in Papua New Guinea, Solomon Islands, and Vanuatu’s website stated ‘According to the Papua New Guinea Adoption Act of 1968, prospective adoptive parents who wish to adopt a child from Papua New Guinea must be resident in Papua New Guinea for a period of six months before they can be eligible to adopt.’: ‘Adopting in PNG’, U.S. Embassy in Papua New Guinea, Solomon Islands, and Vanuatu, undated, Accessed 31 August 2018, CIS7B839419264. COISS located nothing in the 1982 Adoption of Children Act (Chapter No. 275) supporting this statement.

    [9] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) sections ‘5. Welfare and interests of child to be paramount’, ‘6. Who may be adopted’, ‘7. Person in whose favour adoption orders may be made’, 8. Age of adopters’ and ‘9. Court to be satisfied of certain matters’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [10] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) section ‘15. Consents of parents and guardians required to adoptions’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325. According to a PNG lawyer, ‘This process requires a Lawyer to sign the consent to adoption to authenticate that the both parties in the adoption proceeding have consented. Before he signs, he would advise and explain the consequences of consenting to the adoption orders prior to the biological parents signing the |consent to adoption.’: ‘The child adoption process in papua new guinea: common jurisdiction’, [Kamongmenan M H], Wealthy Affiliate (WA), posted 23 October 2017, 20190114150455

    [11] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) sections ‘9. Court to be satisfied of certain matters’ and ‘1. Interpretation’ at “the Director”, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325. According to a PNG lawyer, ‘This report is basically a Home Study Report on the environment in which the child is intended to be raised. The report contains an assessment of the intending parent's capacity to raise the child, and often provide an opinion as to whether or not the adoption should be permitted.’: ‘The child adoption process in papua new guinea: common jurisdiction’, [Kamongmenan M H], Wealthy Affiliate (WA), posted 23 October 2017, 20190114150455

    [12] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) section ‘7. Person in whose favour adoption orders may be made’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [13] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at pp. 154-169 paragraphs 6.4-6.32

    [14] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 153 paragraph 6.1, citing reference endnote (at p.178) ’1. See A Dickey, Family Law, 2nd ed (Law Book Co, 1990), pp 380-82; and P Bromley and N Lowe, Bromley’s Family Law, 8th ed (London 1992), pp 408-10.’; ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925), citing reference endnote ‘9 Bromley PM. Family Law, 2nd edition. London: Butterworths, 1981.’ (at p.104)

1. As Papua New Guinea permits formal adoption, the Tribunal must be satisfied that formal adoption was not reasonably practicable in the circumstances. While the Tribunal is not bound by Departmental policy, it states that the reasons that may be acceptable as to why formal adoption could not be accessed should comprise circumstances that imply a degree of having been beyond the control of the adoptive parent and/or the child at the time of adoption and could include reasons such as war, natural disaster, or extreme geographical isolation.

2. The sponsor told the Tribunal the following: that he began working for a different company in 2012. He was told by the company that they wouldn’t recognise his wife or the children as his dependents. As the sponsor and Mrs Nuttall had lived together since 2007 and had intended to marry, they proceeded to become married.  The company then told him that they would not accept the children as dependent unless they were adopted. On their advice he proceeded to the local court and commenced the customary adoption of the applicant and her brother.  Once the adoption was completed the company accepted the children as the sponsor’s dependents. The benefits to the family included accommodation and assistance with educational costs. He didn’t understand the difference between a customary adoption and a formal adoption at the time. This only became clear to him through the visa application process. He has contacted lawyers in Papua New Guinea to commence the formal adoption process but does not know how long this will take.

3. The Tribunal accepts that the applicant has been customarily adopted by the sponsor. It does not accept that the applicant has been formally adopted by the sponsor. Neither does it accept that the sponsor’s lack of knowledge as a reason why formal adoption was not reasonably practicable in the circumstances.

4. The Tribunal finds that the requirements for adoption under r.1.04(2)(c) of the Regulations are not met.

5. As there was no formal adoption of the applicant by the sponsor before the applicant came to Australia, the Tribunal finds that the applicant is not the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen.

6. Although, as the child of the sponsor’s current spouse, the applicant meets cl.802.212(1)(a) of Schedule 2 to the Regulations, she does not meet cl.802.212(1)(A) of Schedule 2 to the Regulations and therefore does not meet cl.802.212 of Schedule 2 to the Regulations as a whole. The Tribunal finds that the applicant is not the dependent child of the sponsor. The applicant does not meet cl.802.212 of Schedule 2 to the Regulations.

   Other considerations

7. Prior to the Tribunal hearing, the applicant’s migration agent called the Tribunal.  He advised that the applicant’s mother’s flight was delayed and she would be unable to attend the Tribunal hearing.  He asked whether the Tribunal hearing should be postponed.  The Tribunal advised the applicant’s migration agent that the Tribunal hearing would proceed as scheduled as both the applicant and the sponsor were able to attend the Tribunal hearing and provide their evidence. The Tribunal invited a statutory declaration statement from the applicant’s mother.

8. The Tribunal received a statutory declaration dated 1 February 2020 from the applicant’s mother and a statutory declaration dated 2 January 2020 from the sponsor.  The applicant’s mother and the sponsor provide reasons for the applicant’s mother’s delay in flying to Australia and reasons for her not attending the Tribunal hearing.

9. As detailed above the Tribunal relies on the sponsor’s evidence regarding the review of the visa refusal. The Tribunal is satisfied the applicant has been provided a fair opportunity to present her case.

10. Accordingly, at the time of application, the applicant does not meet cl.802.212 of Schedule 2 to the Regulations.

11. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.

12. There have been no claims advanced in respect of the other visa subclass in Class BT Subclass 837.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Helena Claringbold
    Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03   Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)     is dependent on that person; or

    (ii)    is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)     who is the child of the parent’s former spouse or former de facto partner; and

    (ii)    who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)     the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)    the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …

    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.

    
    

Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) and Adoption of Children (Temporary Provisions) Regulations 1969 (as amended to Statutory Instrument No. 13 of 1970), are both in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 20190102132532

In addition to ‘The Adoption of Children Act’ (also ‘The Adoption of Children Act (chap. 275)’), reference is made to ‘The Adoption Act’ in ‘Consideration of Reports Submitted by States Parties Under Article 44 of the Convention. Initial reports of States parties due in 2000. Papua New Guinea’ (CRC/C/28/Add.20), United Nations Committee on the Rights of the Child, 21 July 2003, on United Nations Human Rights, Office of the High Commissioner website, p.7 paragraph 2 & p.33 paragraph 124, CISA125423457. An ‘Adoption Act’ is noted in ‘UNICEF Annual Report 2016. Papua New Guinea’, UNICEF [United Nations Children's Fund], undated [document created 12/06/2017], p.26, CIS38A80129138. However COISS located no other information about a PNG ‘Adoption Act’. There is no ‘Adoption Act’ in ‘Papua New Guinea Consolidated Legislation beginning with A ...’, Pacific Islands Legal Information Institute (PacLII) website, 2012 World Bank review stated that PNG’s National Court has exclusive jurisdiction over, among other things, ‘the statutory adoption of children under the Infants Act’: ‘Papua New Guinea - Country Gender Assessment 2011-2012’, The World Bank, undated [document created 13/03/2013], pp.80 & 85 including footnote 322, CIS961F9402107. However there is no mention of adoption in the Infants Act 1956 (there is extensive reference to guardians and guardianship): ‘[Papua New Guinea Consolidated Legislation.] Chapter 278. Infants Act 1956’, Independent State of Papua New Guinea, Office of Legislative Counsel, undated, certified ‘   /  /20  ‘, [document created 23/03/2018,] on Pacific Islands Legal Information Institute (PacLII) website, 20190111140004. The Infants Act was among the Acts repealed by the Lukautim Pikinini Act 2015 (LPA): ‘Papua New Guinea Country Report 2015’, Pacific Islands Law Officers Network [PILON], undated [document created 4 December 2015], p.5, CISEC96CF17343.