Rakuro (Migration)

[2017] AATA 1626

Rakuro (Migration) [2017] AATA 1626 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Eleni Heilala Ofa Rakuro

CASE NUMBER:  1609940

DIBP REFERENCE(S):  CLF2015/29817

MEMBER:Nicholas McGowan

DATE:Wednesday 23 August 2017

PLACE OF DECISION:  Sydney

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

·             cl.802.211 of Schedule 2 to the Regulations;

·             cl.802.212 of Schedule 2 to the Regulations;

·             cl.802.213 of Schedule 2 to the Regulations;

·             cl.802.214 of Schedule 2 to the Regulations; and

·             cl.802.221 of Schedule 2 to the Regulations.

Statement made on 23 August 2017 at 1:24pm

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – First tribunal member’s decision overturned by department – Revoking an adoption order – Recognised custom of adoption – Formal adoption not reasonably practicable – Wholly or substantially reliant – Compelling or compassionate circumstances – Applicant’s desire to live with her biological mother – Full-time study for a vocational qualification

LEGISLATION

Migration Act 1958, ss 5(1), 5CA, 48

Migration Regulation 1994, Schedule 2, cl 802.211, cl 802.212, cl 802.213, cl 802.214, cl 802.221, r 1.04, r 1.05A, r 1.14A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is not a person to whom s.48 of the Migration Act 1958 Act applies so cl.802.211 is not applicable to the applicant and so is met.

2. The applicant appeared previously before this Member in related case (number) 1507829.

3. That previous AAT decision is inserted below, and forms part of this decision.

4. AAT Decision 1507829:

   DECISION RECORD
   DIVISION: Migration & Refugee Division
   APPLICANT: Miss Eleni Heilala Ofa Rakuro
   CASE NUMBER: 1507829
   DIBP REFERENCE(S): CLF2015/29817
   MEMBER: Nicholas McGowan
   DATE: Thursday March 31, 2016
   PLACE OF DECISION: Sydney
   DECISION: The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa: 802.212 of Schedule 2 to the Migrations Regulations.
   Statement made on 31 March 2016 at 12:01pm

   STATEMENT OF DECISION AND REASONS
   APPLICATION FOR REVIEW
   1. The applicant (born 12 August 1995) applied for the Child subclass 802 visa on 18 May 2015. She was 19 years of age at that time. 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 applicant claimed he was a dependent child of his sponsor (his biological mother). The visa application was refused by the Minister’s delegate on 27 May 2015.

   2. The applicant appealed the refusal decision to the Tribunal on 9 June 2015. The Tribunal conducted a hearing on 18 February 2016. The applicant, her biological mother, and the applicant’s step-father, and the applicant’s half-brother, each gave oral evidence during the hearing. The applicant was represented by his solicitor.

   3. Relevantly (given the applicant is adopted), and based on all the evidence on file and at hearing, the applicant is not considered a child of his sponsor. While the definition of ‘child’ in s.5CA(1)(a) of the Act, which is not exclusive, arguably includes biological parents even where that child has been adopted, s.5CA(2) provides for regulations to specify when a person is not a child of another person where the person would be the child of more than two people. Pursuant to r.1.14A(2) if a child has been adopted under formal adoption arrangements mentioned in r.1.04(1)(b) he is taken to be the child of the adoptive parent and taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption). On 21 November 1997 the applicant was adopted under formal adoption arrangements made in accordance with the law of Fiji, being arrangements under which her biological parents ceased to be recognised by law as her parents as defined in s.5(1) of the Act and her aunt became so recognised: r.1.04(1)(b).

   4. Accordingly, the applicant is unable to rely upon her biological connection with her sponsor to meet clause 802.212 at the time of application. In this regard, the Tribunal notes that the applicant, her half-brother and biological mother (together with the adoptive mother) sought to revoke the 1997 adoption order in the Fijian High Court in 2013 (T1, f.f.45-61). In that case, the Judge found the High Court had no jurisdiction to revoke the order which was granted by the Magistrate’s Court. According to the applicant and her sponsor, no further steps have been taken since the High Court’s ruling to revoke the 1997 adoption order.

   5. It is arguable that the words ‘taken not to be the child of any other person’ in r.1.14A(2) and the fact that the applicant was adopted by her aunt under r.1.04(1)(b) means that for migration purposes the applicant is only the child of her adoptive mother/aunt and only a formal adoption arrangement like an annulment of the adoptive mother’s rights will make her the child of her biological mother for the purposes of cl.802.212. However, as there is no authority on the correct reading of r.1.14A, the Tribunal will consider the claim that the applicant is the child of the sponsor because the sponsor adopted the child pursuant to r.1.04(1)(c) and the argument that because she was her adoptive parent after, rather than before, the aunt’s formal adoption referred to in r.1.14A that clause does not apply.

   6. The applicant claims that in 2012/2013, when she was 17 years old, her sponsor re-established care and control and assumed a parental role in relation to the applicant under arrangements (other than formal adoption arrangements) in the nature of adoption that were entered into outside Australia: r.1.04(1)(c).

   7. Under Regulation 1.04(2), for the purposes of Regulation 1.04(1)(c), arrangements are taken to be in the nature of adoption if the arrangements were made in accordance with the usual practice, or recognised custom, in the culture or cultures of the adoptee and the adopter: Regulation 1.04(2)(a); and, 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: Regulation 1.04(2)(b); and the Minister is satisfied that formal adoption of the kind referred to in Regulation 1.04(1)(b) was not available under the law of the place where the arrangements were made: Regulation 1.04(2)(c)(i)(A); or was not reasonably practicable in the circumstances; Regulation 1.04(2)(c)(i)(B); and the arrangements have not been contrived to circumvent Australian migration requirements: Regulation 1.04(2)(c)(ii).

   8. The Tribunal is satisfied from all the evidence, including having had regard to the finding of the Department in its own refusal decision of 27 May 2015 (page 6), that the arrangements entered into in 2012/13 were made in accordance with the usual practice and recognised custom in the culture of the adoptee and the adopter. Accordingly, the Tribunal is satisfied that the applicant meets Regulation 1.04(2)(a).

   9. The Tribunal is satisfied from all the evidence, in particular the oral evidence of the applicant at hearing, and that her sponsor (and including that of her step-father), that the child-parent relationship between the applicant and her sponsor is significantly closer than any such relationship between the applicant and any other person or persons, having had regard to both the nature of their relationship and the duration. Therefore, the applicant meets Regulation 1.04(2)(b).

   10. A person is taken to have been adopted by a person if the adopter assumed a parental role in relation to the adoptee under 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: 1.04(1)(b). The applicant provided evidence that in Fiji the formal arrangement under which the aunt’s recognition by law as being the applicant’s parent would cease and his biological mother would be recognised as his parent is the annulment of the adoption by his aunt referred to above. In considering
   Regulation 1.04(2)(c) the applicant has made the claim that formal adoption of the kind referred to in Regulation 1.04(1)(b) was not reasonably practicable in the circumstances of his case: Regulation 1.04(2)(c)(i)(B). The evidence shows that the formal arrangements of the kind referred to in paragraph (1)(b), being the ability to annul the adoption, were available under the law of Fiji nor did the applicant claim that the exception in r.1.04(2)(c)(A) was available to her.

   11. As contained in the delegate’s refusal decision (page 6), the applicant’s agent claimed to the Department that an appeal against the decision of the High Court (which refused to hear the applicant’s annulment application) had been delayed by the backlog of hearings and appeals stemming from the sacking of the judiciary in Fiji following a coup in late 2006. In these circumstances, it was argued, formal arrangements were then not reasonably practicable. The Tribunal is minded to agree with such an argument and notes the applicant’s submission that the action taken by them was lodged in February 2012, while the judgment was not handed down on 20 August 2014, at which time the applicant was already 19 years old. Therefore, in all the circumstances, given reasonable steps were made, the Tribunal is satisfied that formal arrangements were not reasonably practicable in the circumstances. Accordingly, the Tribunal has been satisfied that the applicant meets Regulation 1.04(2)(c)(i)(B).

   12. In regards to Regulation 1.04(2)(c)(ii), the Tribunal is satisfied from all the evidence, but in particular the consistent and spontaneous oral evidence of the applicant and her witnesses at the hearing, that the arrangements in this case have not been contrived to circumvent Australian migration requirements. Therefore, Regulation 1.04(2)(c)(ii) is met.

   13. The word “dependent” is defined in r.1.05A. This regulation prescribes the objective criteria to be met for dependence to be established. First, r.1.05A(1) stipulates that the person who is claiming to be dependent (the ‘first person’) must be at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before that time. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: i.e. food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs. Based on the oral evidence of the applicant and in particular her biological mother and step-father, as presented at hearing, the Tribunal has been satisfied that the criteria in r.1.05A are met. This is because the applicant has satisfied the Tribunal she has been substantially reliant on her biological mother (for substantial period of time) to meet her basic needs for food, shelter and clothing (and more so), than on any other person or source of support. It therefore follows that r.1.05A is satisfied. Based on all the evidence available to the Tribunal, it is also satisfied that the applicant is neither engaged to be married nor has a spouse or de facto partner.

   14. As a result of all the above findings, Regulation 1.04(1)(c) has been met. The applicant is a dependent child of a person who is a holder of a permanent visa.

   15. Accordingly, based on all the evidence, the Tribunal is satisfied that the applicant meets clause 802.212 of Schedule 2 to the Migrations Regulations at the time of application.

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

5. The Minister’s delegate has refused the application for the child (residence) visa because clauses 802.213(5)(b)(i) or (ii), 802.213(5)(d) and 802.214(1)(c) have not been met.

6. The applicant was under 18 when the adoption took place so cl.802.213(1)(a) is met.

7. The applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, the holder of a permanent visa therefore cl.802.213(5)(a) is met.

8. Clause 802.213(5)(b)(i) requires the adoptive parent to have been residing overseas for at least 12 months at the time of application. As neither the sponsor or her husband have resided overseas for more than 12 months, the Tribunal must consider whether compelling or compassionate circumstances apply such that the waver provision should apply: cl.802.213(5)(b)(ii). Having taken into consideration the full circumstances and history of this case, in particular points 1-13 from Decision 1507829 (as outlined above), and having reconsidered all circumstances during the Tribunal’s second and most recent hearing, the Tribunal has been satisfied by the parties that the applicant’s adoption history and desire to live close to, and in fact with, her biological mother (and potentially her sibling too) are compelling and compassionate circumstances which clearly, in the mind of this Member, enliven the application of the waiver provision that subparagraph (i) should not apply to the applicant. Accordingly, cl.802.213(5)(b) is met. Further, as the sponsor did not effect the applicant’s adoption by residing overseas for more than 12 months, cl.802.213(5)(c) is technically not applicable and so is met. However, in any event the Tribunal is satisfied that nothing in the actions of the adoptive parent, her spouse, or the applicant was contrived to circumvent the requirements for entry to Australia of children for adoption.

9. Clause 802.213(5)(d) requires, relevantly to this case, that the adoptive parent has lawfully acquired full and permanent parental rights by the adoption. The Tribunals finds the applicant’s sponsor as her adoptive parent had lawfully acquired full and permanent parental rights by her customary adoption at the time of application. While she was a minor from the date of her customary adoption until she reached majority the sponsor was the only person exercising parental rights. Her aunt handed care and control of her to the sponsor and gave up her parental rights. From the arrangements entered into in 2012/2013 that resulted in the applicant’s customary adoption, her aunt through her own acts (including her statement in the case) instigated and consented to the severing of her parental rights and the transfer of those rights solely and permanently to the sponsor. This means the sponsor lawfully acquired those rights despite the fact that it was not possible at the time for the aunt to formally sever and transfer those rights. As cl.802.213(5) is satisfied, cl.802.213(1)(b) is met.

10. Clause 802.214(1)(c) outlines the study requirements placed on the applicant  (at the time of application). Relevantly in this case, the evidence on file supports the following: the applicant turned 18 on 12 August 2013. The applicant completed her secondary school in December of that year (2013). She begun full-time studies leading to a vocational qualification, and continue to study at the time of this decision as is evidenced by her undertaking a Certificate III in Community Services. In the opinion of this Member, and having taken into account the circumstances of the applicant including proper investigation of the study options available to her, the applicant undertook a full-time course of study at an educational institution leading to the award of a vocational qualification within a reasonable time after completing the equivalent of year 12 in the Australian school system. Accordingly, cl.802.214(1)(c) is met.

11. Given the above, and including those findings reached in decision 1507829 which forms part of this decision, and taking into account the reliable oral evidence of the applicant and her parents at hearing (on two occasions), the Tribunal is satisfied that the applicant is not engaged to be married and does not have a spouse or de facto partner and has never had either, and was not at the time of application engaged in full-time work. Accordingly, the applicant meets clause 802.214(a) and (b).

12. Citing all of the above, the applicant meets clauses 802.211, 802.212, 802.213, and 802.214.

13. In addition, the applicant, who has not turned 25, has satisfied the Tribunal she continues to be substantially reliant on her biological mother to meet her basic needs for food, shelter and clothing, and her reliance on her is greater than on any other person or source of support. It therefore follows that r.1.05A is satisfied and the applicant continues to be the dependent child of the sponsor. Therefore, because the applicant continues to satisfy the criterion in clause 802.212, cl.802.221(2)(a) is met.

14. The applicant also has satisfied the Tribunal that she continues to be a full-time course of study at an educational institution leading to the award of a vocational qualification at the time of decision, is not engaged in full-time work, and his marital status has not changed. As the applicant continues to meet cl.802.214 at the time of decision, the applicant also meets clause 802.221(2)(b) at the time of decision: therefore cl.802.221(2) is met.

15. The appropriate course is to remit the application to the Minister for further consideration.

    *  *  *  *  *

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Schedule 2, Part 802

    …

    802.213(1)     If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:

    (a)was under 18 when the adoption took place; and

    (b)meets the requirements of subclause (2), (3), (4) or (5).

    (2)The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.

    (3)The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.

    (4)The applicant meets the requirements of this subclause if:

    (a)the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

    (b)before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent's spouse or de facto partner as suitable adoptive parents, for the applicant.

    (5)The applicant meets the requirements of this subclause if:

    (a)the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and

    (b)either:

    (i)when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or

    (ii)the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

    (c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    (d)the adoptive parent has, or the adoptive parent and the adoptive parent's spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.