Perkins (Migration)

[2018] AATA 1997

Perkins (Migration) [2018] AATA 1997 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Richard Johnathan Perkins

VISA APPLICANT:  Master Andras Edward Perkins

CASE NUMBER:  1721608

DIBP REFERENCE(S):  2017006175

MEMBER:Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:        5 June 2018 at 12:15 pm (QLD time)

DATE OF WRITTEN RECORD:               5 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 05 June 2018 at 4:17pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) – Subclass 102 (Adoption) – Lawfully adapted child in Hungary – Neither adoptive parent resided overseas for a period of 12 months preceding the visa application – Extenuating circumstances – Review applicant wife’s Australian government funded Phd commitments – Review applicant unable to speak Hungarian – Convention on the Rights of the Child considerations – Family well settled in Australia – Ministerial intervention referral by the Tribunal

LEGISLATION
Migration Act 1958, ss 351, 359AA
Migration Regulations 1994, Schedule 1 Item 1108 Schedule 2 cl 102.211

CASES

Hafza v Director General of Social Security [1985] FCA 164
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241
Nguyet Huong Phung v MIEA (1997) 74 FCR 422

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1](the Minister) on 12 July 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under the Migration Act 1958 (the Act).

   [1] Now the Minister of Home Affairs

2. At the hearing on 5 June 2018, the Tribunal made an oral decision. The following is the statement of written reasons for that decision.

   STATEMENT OF DECISION AND REASONS

3. The review applicant is a 39-year-old citizen of Australia. The visa applicant is a 5-year-old citizen of Hungary. The review applicant and his wife, Mrs Klaudia Anita Perkins (who is 43 years of age and an Australian citizen who was born in Hungary) adopted the visa applicant in Hungary on 24 March 2016.

4. The visa application for the visa applicant was lodged on 24 April 2017.

5. The delegate refused to grant the visa on the basis that not at least one adoptive parent had been residing in any country (or countries) other than Australia for the 12 months prior to making the visa application as required by cl.102.211(2)(b)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. The review applicant lodged an application for review of the delegate’s decision with the Tribunal on 13 September 2017. The review applicant provided a copy of the delegate’s decision to the Tribunal when he made his application.

7. The review applicant appeared before the Tribunal on 5 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Perkins.

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

   ISSUES

9. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative): Item 1108 of Schedule 1 to the Regulations. The only subclass in respect of which any claims have been advanced is Subclass 102 (Adoption).

10. The criteria for a Subclass 102 visa are set out in Part 102 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria. The primary criteria include cl.102.211 which requires that either cl.102.211(2), (3), (4) or (5) be satisfied: cl.102.211(1).

11. The evidence before the Tribunal is that the adoption of the visa applicant by the review applicant and Mrs Perkins was undertaken entirely via the authorities in Hungary. Clauses 102.211(3), (4) and (5) therefore have no application. It is therefore necessary that the requirements of cl.102.211(2) are met. It provides as follows:

    (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.

12. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Is the applicant under the age of 18? And, if so,

    (b)  Was the applicant adopted overseas by a person who was at the time of adoption an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen? And, if so,

    (c)  Had that person been residing overseas for more than 12 months at the time of the application? And, if so,

    (d)  Is the Minister 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, if so,

    (e)  Has the adoptive parent lawfully acquired full and permanent parental rights by the adoption?

    CONSIDERATION

13. The visa application and associated documents lodged with the Department included:

    (a)  A statement of the review applicant and Mrs Perkins as follows (unedited):

    In November 2015, after the completion of Klaudia’s degree we decided to take the opportunity to visit our families in Hungary and in England as over the past few years due to Klaudia’s study we had been unable to visit and spend quality time with our loved ones. Over the years in Australia we had also accumulated several things that needed to be sorted in person while in Hungary, such as visiting our accountant and sorting out any tax obligations there, carrying out much needed repairs on our property in Hungary and we also have other financial investments there that needed our personal attention We also went on holiday to Rome to spend /Christmas with our families there. Additionally, while in Europe, Klaudia had arranged to and visited a research centre (Leibniz Institute) in Berlin Germany to carry out a preliminary experiment with them over a few weeks’ and to discuss further opportunities to collaborate on the research in the future.

    As our original intention was to return to Hungary after Klaudia had completed her university studies, we contacted the Hungarian Government and were placed on the adoption waiting list in April 2012 and subsequently in December 2012 we returned to Hungary to attend and complete the components for the required adoption licence needed in order to a doctor. However, while Klaudia was completing her studies we became more and more hesitant as to what to do once completed, whether to return to Europe or stay in Australia. We loved Australia but we did miss our families back in Europe. After a lot of soul searching we decided to remain in Australia, and as such applied for and received our citizenship in January 2014, and in doing so we accepted that we had given up on the whole adoption process.

    We have not been in contact with the Hungarian government for years as we had previously concluded that any potential adoption was not going to occur, so you can imagine we were stunned when during our time in Hungary we received a phone call from them in January 2016 advising us that they had paired us with a near 3-year-old boy. Obviously, we were very excited and interested and therefore agreed to meet with him. We then spent the next few weeks visiting him to see if there was a connection and whether we wanted to proceed further. He was at that stage in his life that if he was not adopted before he turned three, he would have had little chance to have been adopted and to have a family. Along with the 22,000 or so other children in the Hungarian Government’s care, he had been in the system for a long time without them finding suitable parents.

    We have for a long time wanted to be able to have our own family, and give an opportunity for a better life to a child in need and the government felt that we were the most suitable parents for him. The government social worker who was responsible for the child even said that she was stunned and excited with the possibilities we could provide him, possibilities even she was unable to offer her own children. The whole adoption process was very smooth, and even on our first day with him he naturally chose to call us mum and dad. His character is great, he is open minded, curious, kind, friendly, active, smart, healthy and he was a perfect fit for us. Over the last year since the adoption was finalised, he has shown such improvement because of the stable environment we have provided for him, and he is bilingual becoming fluent in English while also continuing to speak in his native tongue, Hungarian, with his mother.

    Along with Australia, Hungary is a signatory of the international treaty of The Hague Convention and as such we were required to follow the relevant international proceedings and requirements. We kept daily contact with the government throughout the entire process, including numerous home visits both before and after the final court order was issued. Even though it is now unnecessary to do as we have completed all the legal and statutory requirements, we still maintain contact with the social workers who handled our case and provide ongoing information and photos as to how he is adapting, progressing, integrating, and growing to the Hungarian government.

    We came back to Australia in October 2016 to travel, visit friends and to see whether and how he would enjoy life in Australia should he wish to return later. While here Klaudia visited her supervisor at the university to have a discussion to explain her findings from her research conducted in Germany, when he offered her scholarship for a PhD, with The PhD being a further collaboration with the Leibnitz Institute in Berlin, Germany.

    (b)Documents confirming the adoption of the visa applicant by the review applicant and Mrs Perkins in Hungary on 1 April 2016.

14. The review applicant provided a detailed written statement to the Tribunal setting out the background to this matter as follows (unedited):

    We would like to appeal against the decision to refuse a visa for our adopted son, Andras Edward Perkins. The immigration delegate’s decision was based upon us not meeting the requirement of not being out of the country for a total of 12 months prior to lodging the application, and that there was no scope to wave this requirement.

    In the decision letter, he did also state that while living outside Australia we were permitted to visit Australia for short periods of time, for both personal and business reason, and that these visits would not be taken into account when determining the period outside Australia. It is our belief that by permitting these visits and not taking them into account by definition allows for scope in meeting this requirement.

    We feel we have extenuating circumstances in not meeting this requirement, as set out below, which we would like to be considered, and as such we would ask for the tribunal to consider these circumstances and overturn the decision made by the Australian immigration.

    Extenuating circumstances:

    –   Mrs Klaudia Anita Perkins (Anita), had been offered a government supported PhD Scholarship which was due to commence on 16^th March 2016. Due to the unexpected adoption, she was unable to enrol on that date, and as such sought and was granted several extensions to the commencement of her PhD. However, the last extension granted was until October 26^th, with no further extensions being offered. Should she not have commenced at this time the PhD would have been withdrawn.

    –   As our adopted son, Andras Edward Perkins (Andras) primary language at that time was Hungarian, and his father Richard Perkins (Richard) has only a basic understanding of the language, there was an obvious need that in the best interest of the child he remains with his mother, Anita, who was fluent in the language and could convers with him.

    –   As Anita was expected upon enrolment onto the PhD to attend university on a full-time basis, there was a need for Richard to be always present to provide care for Andras. It was felt that it would not be in his best interest to be with a childminder, given both the special circumstances that comes with adoption but also the fact that English was not is first language and the likelihood of being able to locate a childminder with the necessary understanding of his language would have been hard if impossible.

    –   Furthermore, due to Anita being required to attend on a full-time basis, there was a need for Richard to be present such that he could look for a suitable home for the family.

    We would like to ask for this matter to be considered with some urgency, as our adopted son Andras is currently allowed to stay in Australia on a holiday visa, which will expire on 6 August 2018.

    Although as part of the visa application, we provided some background as to how we came about to be in this position, we would like to provide a more comprehensive background as to why this adoption ultimately became so important to us as a couple.

    We came to Australia in 2009 for Anita to study and in 2011 we got married. A year later we began to question as to how we could have children, due to the lack of success in trying naturally for 8 years. Anita has medical difficulties in conceiving, and with a previous partner she had tried hormone injections and artificial inseminations but neither had worked. So, instead of trying with IVF we decided that once Anita had completed her degree we would go back to live in Hungary and adopt. As with most countries, the waiting list in Hungary is long, so we went back to Hungary in 2012 to start the process with getting all documents and attending the relevant courses we need to be, to be accepted onto the waiting list.

    In order to finish her studies as quickly as possible with a view to returning to Hungary, Anita requested to be allowed to complete both the final stages of her undergraduate degree and an Honours course together. Not many people at the university had been given this opportunity, but due to her grades and the extenuating circumstances the University agreed. It turned out that Anita was only the second student at Southern Cross University to be granted this. As time passed by however we fell in love with the magical natural settings of Australia and when we could apply to become Australian citizens in 2014 we decided to do so. As Anita neared completing her degree we became more confused as to whether to stay in Australia or go back to Hungary. We considered every single opportunity we could to try to find a way to have a family. We contacted the Queensland Social Services to see if there was a way. At a meeting with Queensland Social Services they advised us there was little opportunity to adopt in Australia and currently the inter-country adoption programme had only 2 of the 11 countries they currently had agreements with that were active. They were keen to establish new opportunities for Australians, so at our request they tried to contact the Hungarian adoption services, but the Hungarian government was not open to considering to put an agreement in place. We looked at the current inter-country adoption programmes, fostering or any other opportunity that could provide us with the family.

    Once Anita had completed her degree ( June 2014) she decided to return to hungry in July 2014 for several reasons. She had tenants changing, she needed to empty the property she rented, build fences on another, sort out tax obligations there and so on. However, due to work obligations, Richard stayed in Australia.

    To be quite honest, this was not working how we had planned, Richard found this difficult as he felt that his wife had abandoned him, and was being put under increasing pressure at work, which was a big accounting firm in Brisbane CBD. They were in the process of rolling out a new program, he was one of only a few competent people in the firm with the knowledge of the software, so he was needed to adapt the program to set suit the firm’s needs and then train the staff (approx. 50 staff); Furthermore, they had begun to outsource processing to the Philippines, and Richard had the duty to train the new staff, and when Richard was meant to be visiting Hungary, he instead had to go to the Philippines. With all this additional pressure, and because Anita was not in Australia to support him emotionally Richard became clinically depressed and the whole situation simple melted away. 12 weeks after Anita had left, Richard finally had the chance to visit Hungary but only for a few days. By this point however our relationship is beginning to have serious problems, so a week or so later Anita left Hungary to return to Australia to try to recover our relationship and help Richard. What followed was a year of hell, arguing, and depression on both sides, with both of us seeking medical assistance through visiting a counsellor to try to help us through it. When we finally came through at all we sat down and discussed our options for the future.

    At this point, Anita tried to apply for a PhD scholarship at Southern Cross University in order to carry on studying. Unfortunately, on this occasion the application was unsuccessful. Richard resigned his position because of the pressure and took a part time role at small boutique accounting firm on the Gold Coast. Ultimately though, we both were even more confused and unsure as to what to do, return to Europe or stay in Australia. So, we decided to let life decide it for us.

    Anita had a theory about the role of groundwater fungi in relation to climate, which is the topic that crossed disciplinary areas of microbiology/mycology and biogeochemistry. If she was to be able to study this subject she would need suitable supervisors in the relevant fields. She had a potential biogeochemist supervisor at Southern Cross University, but he was not enough, so after a lot of research she found a senior scientist in microbial ecology in Germany, who was very interested in her idea. He invited Anita to Germany to discuss the theory further, and to potentially conduct some preliminary research. Anita submitted several scholarship applications in the hopes to support the research, including a PhD scholarship at Southern Cross University, a “DAAD “ application to study collaboratively between Australia and Germany, a CSIRO scholarship and a Masters application at Macquarie University. Additionally, Richard‘s boss had agreed to him being able to continue to work from overseas. So, once the applications had been submitted, we simply packed everything up into storage and went to Europe to visit our families and to go on a holiday to Rome (December 2015).

    As soon as we got to Europe the first results of the applications started to arrive. Some were unsuccessful, but two with the successful. On the 11^th December 2015, Anita was accepted on to a PhD at Southern Cross University to commence in March 2016, and on 15th of December 2015 Anita was offered the Masters at Macquarie University. Anita immediately contacted her supervisor at Southern Cross University, who told her that if she wished she could take the Masters with Macquarie University, and in March 2017 when she was due to enrol on to the PhD, she could apply for an extension to give her sufficient time to complete her Masters before starting the PhD. These two scholarships meant a total of four years funding provided by the Australian Government. As such Anita accepted both offers, and shortly afterwards we travelled to Germany to visit the German scientist and he offered ways to work towards the research subject.

    In early January 2016, we visited Germany and Anita discussed with her German supervisor the theory and ways in which she could begin to prove it. At that time, it was decided that we would only need to visit Germany for short periods of time whereby Anita would be able to conduct her experiments. Whilst back in Hungary we received a phone call on 29^th January 2016 from the Hungarian social services advising us that they had identified a potential child. Obviously, we were both shocked and excited at the prospect of possibly becoming the family we had wanted to become and so at the earliest opportunity we met with Andras. Having then met with Andras and had fallen in love with him and his little character, we immediately agreed to begin the processing of the process of adopting him, which entailed numerous visits to spend time with Andras, further home visits by the relevant authorities, and ultimately adopted Andras legally on 1st April 2016.

    In the meantime, Anita managed to find a time in which to complete the experimental stage of the Masters and commence work on writing up a thesis. Anita also maintained contact with her Supervisor for her PhD, Isaac Santos, keeping him up to date on our personal circumstances. He was very understanding of the situation we had found ourselves in, and tried to assist Anita with supporting her requests for extensions to her enrolment date due in part because of her Masters, but now in the main because of the adoption.

    Over time however, Anita felt that her PhD Supervisor was becoming impatient with having to wait for Anita to join him at the National Marine Research Centre in Coffs Harbour, as he had plans and projects he was expecting Anita to assist with, and so he started to push her return to Australia. He raised concerns about running out of time and problems and issues that the extensions could cause because of expected due dates.

    As such we finally decided to return to Australia on 23rd October 2016, such that Anita would be able to enrol on to the PhD before the final deadline granted by the Dean of the University. After such a long flight, we needed to rest a day, then drove from the Gold Coast to Coffs Harbour. On the 25^th October 2017, Anita submitted her Master’s thesis, and was then able to accept fully the PhD scholarship and enrolled on the 26^th October 2017.

    Having now spent nearly a year engrossed in the PhD, Anita has already conducted ground breaking practical experiments with the data collected showing very positive results, and is planning further experiments early in 2018. If the decision were to be upheld, Anita would have no alternative but to forego the PhD, and as such would not be able to complete her PhD.

    We have an adore Australia, and could not think of a better place to bring up our child, and as such our lives and the future for us and our adopted son, Andras, is in your hands.

    However, if you still feel that the visa decision was correct, we would ask and wish for you to consider permitting our adopted son, Andras a suitable visa which would allow him to remain in Australia while Anita is completing her PhD Studies, at which point upon completion we would grudgingly accept to leave and return to Europe.

1. At hearing, the review applicant told the Tribunal that they thought that the 12 months outside Australia requirement was an overall calculation. He agreed that, as put to him by the Tribunal pursuant to s.359AA of the Act, both he and Mrs Perkins were in Australia for six months in the 12-month period immediately prior to the visa application on 24 April 2017.

2. The review applicant and Mrs Perkins told the Tribunal of the various difficulties they initially had when they arrived back in Australia in October 2016, including practical matters such as finding a car and a house, and initial practical difficulties with Mrs Perkins’ studies and extended family issues that meant that it was not until April 2017 that they were able to lodge the visa application. The review applicant and Mrs Perkins’ evidence was that they are now very settled in Australia. Everything is going well for both of them professionally and personally and Andras has settled well into Australia, and settled well with them. He is bilingual and a well-adjusted child who brings them much joy. They have spoken to their local member about the issues with the visa applicant’s visa and he has been very interested and supportive and has suggested that he will continue to be supportive if they are not successful before the Tribunal and are required to seek the Minister’s intervention. When queried as to their future plans, they told the Tribunal that they have no idea what they will do. They had planned on settling in Australia and that is where their professional and work interests lie. They have limited options elsewhere, including because of, for example, Mr Perkins’ inability to speak Hungarian.

   Issue 1 – Is the applicant under the age of 18?

3. Based on the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant is 5 years of age and is therefore under the age of 18. Subclause 102.211(2)(a) is therefore met.

   Issue 2 – Was the applicant adopted overseas by a person who was at the time of adoption an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen?

4. Based on the evidence before the Tribunal, the Tribunal is satisfied and finds that the visa applicant was adopted overseas by the review applicant and Mrs Perkins who are both Australian citizens.

   Issue 3 – Had that person been residing overseas for more than 12 months at the time of the application?

5. In Nguyet Huong Phung v MIEA (1997) 74 FCR 422 at 428, the Court considered a similarly worded, previous, version of the provision which required that the applicant be ‘a child who has not turned 18 adopted by an Australian citizen … where: the adoptive parent has been residing overseas for more than 12 months at the time of the application…’ The Court held that this required the 12 months or more to be prior to the time of application (impliedly, immediately prior to the time of application) and it was not sufficient if the adoptive parent has had, at some earlier time, a period of more than 12 months’ overseas residence.

6. The concept of ‘residence’ has received considerable attention in common law, usually in the context of taxation or social security legislation. It was considered by the High Court in the taxation case of Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (Koitaki’s case) (1941) 64 CLR 241 at 249. Justice Williams, with whose reasons Rich ACJ and McTiernan J expressed agreement, made the following observation regarding residence:

   The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode.

7. In Hafza v Director General of Social Security [1985] FCA 164, Justice Wilcox held that the concept of residence includes two elements: ‘physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever’.

8. As noted by the delegate in their decision, movement records from the then Department of Immigration and Border Protection[2] (the Department), and as put to the review applicant at hearing pursuant to s.359AA of the Act, show that the review applicant had been present in Australia for the following periods of time in the 12 months preceding the date of the visa application on 24 April 2017:

   22 October 2016 to 18 February 2017

   23 February 2017 to 22 April 2017

   Returned 24 April 2017

   [2] Now the Department of Home Affairs.

9. As noted by the delegate in their decision, movement records from the Department show that Mrs Perkins had been present in Australia for the following periods of time preceding the date of the visa application on 24 April 2017:

   22 October 2016 to 22 April 2017

   Returned 24 April 2017

10. The Department’s Procedures Advice Manual 3 (PAM3) contains departmental policy which relevantly in this case, as regards the requirement to have been residing overseas for more than 12 months at the time of the visa application, states:

    Brief visits to Australia by the adoptive parent during that period may be counted towards the 12 month period of absence from Australia. (A visit may be considered incidental if it was brief (a matter of weeks) and for business or personal reasons.

11. The evidence is that both the review applicant and Mrs Perkins were in Australia for approximately six of the 12 months preceding the visa being lodged on 24 April 2017. This clearly was not a visit or incidental time in Australia, as was conceded by the review applicant at hearing. The review applicant was employed full-time in Australia during this time and Mrs Perkins was studying throughout this time. The Tribunal is not satisfied that the review applicant’s or Mrs Perkins’ time in Australia during the relevant period could be classed a ‘brief’ visit.

12. For the reasons set out above, the Tribunal finds that neither adoptive parent – the review applicant nor Mrs Perkins – resided overseas for a period of 12 months preceding the visa application. Accordingly, cl.102.211(2)(b)(ii) is not met. Therefore the Tribunal finds that the visa applicant does not meet the requirements of cl.102.211(2).

    Issue 4 – Is the Minister satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption?

    Issue 5 ­– Had the adoptive parent lawfully acquired full and permanent parental rights by the adoption?

13. Given the Tribunal’s findings in relation to cl.102.211(2)(b)(ii), it is not necessary for the Tribunal to consider these issues.

    OTHER SUBCLASSES

14. In respect of the other visa subclasses of the visa class sought, there is no material before the Tribunal which would permit a finding that the visa applicant meets the prescribed criteria for the visas sought.

15. There are two other subclasses, namely the Subclass 101 (Child) visa and the Subclass 117 (Orphan Relative) visa.

16. The visa applicant does not meet the criteria for a Subclass 101 (Child) visa because the alternative criteria in cl.101.211(1)(c) are not met, that is, the visa applicant is an adopted child and therefore does not satisfy cl.101.211(1)(c)(i)(A) which requires that the visa applicant is a child other than an adopted child. Furthermore, the visa applicant is not a step-child and therefore does not satisfy cl.101.211(1)(c)(i)(B). Finally, the visa applicant was not adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, because at the time of adoption the review applicant and Mrs Perkins were both Australian citizens and therefore do not meet the requirement in cl.101.211(1)(c)(ii).

17. In respect of a Subclass 117 (Orphan Relative) visa, there is no material before the Tribunal which suggests that the visa applicant meets prescribed criteria. The visa applicant is not an orphan relative of the Australian relative, as those terms are defined, and therefore does not meet the requirements to be granted a Subclass 117 visa.

    Conclusion

18. The Tribunal has found that the visa applicant does not meet the requirements of cl.102.211(2). It follows that the visa applicant does not satisfy cl.102.211 and therefore does not meet the criteria for an Adoption visa, Subclass 102. Further, the requirements are not met for either a Subclass 101 (Child) or Subclass 117 (Orphan Relative) visa.

    REFERRAL TO THE MINISTER

19. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417, and s501J) available in the Procedures Advice Manual 3 (the Minister’s Guidelines).

20. Among other things, the Minister’s Guidelines state that the Minister may consider exercising his or her discretion in cases that exhibit one or more ‘unique or exceptional circumstances’. The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. They include the following:

    (a)  Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

    (b)  Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

    (c)  Exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

    (d)  Circumstances in which the application of relevant legislation leads to unfair or unreasonable results in a particular case.

21. The Minister’s Guidelines further note relevant issues including circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration and circumstances that may bring Australia’s obligations as a party to the International Covenant on Civil and Political Rights (ICCPR) into consideration. The Tribunal notes that CROC Article 3 provides: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. ICCPR Article 23.1 provides: ‘The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.’

22. There are facts or circumstances warranting further investigation by the Department before referral to the Minister, but the evidence before the Tribunal indicates the following matters in particular.

23. The review applicant and Mrs Perkins have been married since 2011. Mrs Perkins has been unable to have her own biological child, either during this relationship or during an earlier relationship during which she undertook extensive medical treatment with that goal in sight. Years before they adopted the visa applicant, the review applicant and Mrs Perkins set in train the process that led to his adoption. At the time they did that, they were not citizens of Australia. Upon becoming Australian citizens, they also looked into adoption opportunities utilising Australia’s adoption services and looked at other possibilities for building a family together, such as fostering. By 2015, the review applicant and Mrs Perkins had abandoned any realistic hope of having a family together and Mrs Perkins concentrated her considerable skills and efforts towards the study of the role of groundwater fungi in relation to climate. In December 2015, Mrs Perkins was accepted for a PhD at Southern Cross University in Australia due to commence in March 2017 and on 15 December 2015 was offered a scholarship to undertake a Masters at Macquarie University in Australia, with both courses together encompassing four years of funding provided by the Australian Government. Unexpectedly, in January 2016, they received news of an adoption possibility from Hungary and, understandably, following due exploration of that option, adopted the visa applicant on 1 April 2016. Mrs Perkins deferred commencement of the offered studies as long as she could until she was effectively forced to return to Australia in October 2016 to take up the scholarships and the studies organised, or would otherwise have had to forgo those opportunities. The review applicant’s work is as a chartered accountant and he has always enjoyed gainful employment whilst in Australia.

24. It is apparent from the documents submitted to the Department that the authorities in Hungary conducted a comprehensive inquiry before determining the best interests of the visa applicant and the suitability of the review applicant and Mrs Perkins as parents. The visa applicant is currently the holder of a visitor visa and has now been part of the family of the review applicant and Mrs Perkins for over two years. The evidence before the Tribunal is that he has adapted very well to life in Australia and is bilingual and, understandably, brings much joy and purpose to the lives of the review applicant and Mrs Perkins.

25. The review applicant told the Tribunal that he and his wife have endured many years of instability and uncertainty dealing with their inability to have a family together by putting their efforts towards their professional life, and then having their life thrown into turmoil, albeit joyous turmoil, when the adoption process proved successful after they had given up hope. There was no medical or other expert evidence submitted to the Tribunal in relation to the current health circumstances of the relevant persons. However, the Tribunal accepts that the review applicant has previously suffered from clinical depression and that after many years of uncertainty, the forced departure of the entire family from Australia, the necessary outcome of a visa refusal for the visa applicant, could result in serious, ongoing and irreversible harm and continuing hardship to the review applicant and/or Mrs Perkins (both Australian citizens) and/or the visa applicant, whose best interests as a five-year-old child are a primary consideration pursuant to the CROC. Furthermore, the fact of Mrs Perkins being the recipient of government funding in relation to very specialised study suggests that her ability to remain in Australia to complete these studies, and have that knowledge subsequently utilised in Australia after those studies are completed, will likely be of exceptional scientific benefit to Australia. The Tribunal accepts Mrs Perkins’ evidence that her research is quite unique and ground-breaking and the reality is that should the visa applicant not be granted a visa permitting his stay in Australia, Mrs Perkins will have no option but to depart Australia before those studies are completed (thus resulting in the futile expenditure of government funding in this regard).

26. The Tribunal was not required to reach a conclusion as to whether the residence overseas by the review applicant and/or Mrs Perkins, for the time they were residing overseas, was contrived to circumvent the requirements for entry to Australia of children for adoption nor whether they had lawfully acquired full and permanent parental rights by the adoption. However, having regard to the evidence before it, the Tribunal is satisfied that their residence overseas was not contrived to circumvent the requirements for entry to Australia of children for adoption. Further, the documents in evidence before the Tribunal show that they have lawfully acquired full and permanent parental rights of the visa applicant by adoption.

27. Having had regard to relevant factors, individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

28. The Tribunal affirms the decision under review.

    Susan Trotter
    Member