Robinson (Migration) - [2023] AATA 938

Robinson (Migration) [2023] AATA 938 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Karen Ann Robinson
VISA APPLICANT:  Ms Bridgit Nafula Juma
REPRESENTATIVE:  Ms Catherine Follett
CASE NUMBER:  2218355
HOME AFFAIRS REFERENCE(S):          BCC2022/2786252

MEMBER:Brendan Darcy
DATE:29 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Class AH) visa.

Statement made on 29 March 2023 at 2:35pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – legitimate guardianship in Kenya – adoption laws in Kenya – best interests of the child – moratorium on intercountry adoptions – no formal adoption in Australia – customary adoption under Australian law – full and permanent parental rights – age requirements – referral for Ministerial Intervention – sponsor’s long-term relationship with the visa applicant’s extended family – emotional and financial care – decision under review affirmed
LEGISLATION
Family Law Act 1975, s 60-1
Family Law Reform Act 1995
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 102.211, 102.213, 102.221, 117.211; rr 1.04, 1.10, 1.14
CASES
B v B: Family Law Reform Act 1995 (1997) FLC 92
Rani v MIAC [2012] FMCA 705
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 July 2022. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements in clauses 102.211 and 102.221.
The review applicant (or the sponsor) and the visa applicant (or the applicant) were represented in relation to the review.
In February 2023, the representative wrote to the Tribunal indicating the parties wished to waive their right to a hearing, and for the Tribunal to proceed with its decision making ‘on the papers’. On 15 March 2023, the representative wrote to the Tribunal to consider a Ministerial Intervention recommendation as a matter of urgency. The matter was constituted to the presiding Member on 28 March 2023.
Under these circumstances, the Tribunal proceeded to make a decision without a scheduled hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant meets the criteria of cl.102.211. Cl.102.211(1) requires that the applicant meets the requirements of subclause (2), (3), (4) or (5).
Background
On 18 July 2022, an application for a Class AH Subclass 112 (Adoption) visa was validly lodged.
The visa applicant was born on 14 August 2004 in the Republic of Kenya. Her identity documents indicate that she is a citizen of Kenya. At the time of application, she was aged 17 years and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 938
Decision Date: 29 March 2023

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against a decision to affirm the refusal of a Class AH Subclass 112 (Adoption) visa. The visa applicant, born in Kenya in 2004, was sponsored by Karen Ann Robinson, an Australian citizen. The core of the dispute revolved around whether the applicant met the criteria for an adoption visa, specifically cl.102.211, given the circumstances of her guardianship and the applicable Kenyan and Australian adoption laws.

The primary legal issues before the court were whether the Kenyan court decree appointing the sponsor as the visa applicant's legal guardian constituted a valid adoption under Australian migration law, and whether the applicant met the requirements of cl.102.211 of the Migration Regulations. This involved considering the impact of Kenya's moratorium on intercountry adoptions for foreign citizens and the definition of customary adoption under Kenyan law, particularly in relation to the sponsor's familial connection to the applicant. The court also had to determine if the sponsor had acquired full and permanent parental rights recognised by Australian law.

The court reasoned that while the Kenyan court decree granted the sponsor legal guardianship and sole custody, it did not amount to a customary adoption as understood under Australian law. The moratorium on intercountry adoptions for foreign citizens in Kenya was a significant factor, as was the finding that the sponsor was not a member of the applicant's extended family in a manner that would permit a customary adoption. The court concluded that the Kenyan decree, while conferring significant parental responsibilities, did not establish the full and permanent parental rights required for a subclass 112 visa.

Consequently, the Tribunal affirmed the decision under review, finding that the visa applicant did not meet the criteria for the Adoption visa.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the visa applicant meets the criteria of cl.102.211. Cl.102.211(1) requires that the applicant meets the requirements of subclause (2), (3), (4) or (5).Background On 18 July 2022, an application for a Class AH Subclass 112 (Adoption) visa was validly lodged. The visa applicant was born on 14 August 2004 in the Republic of Kenya. Her identity documents indicate that she is a citizen of Kenya. At the time of application, she was aged 17 years and 11 months. The submitted birth certificate states the visa applicant’s biological mother is Carolyne Nangila Masika and her biological father is Geoffrey Juma Kapukha. At question two in the Form 40CH – Sponsorship for a child to migrate to Australia, it was stated that Karen Ann ROBINSON was the sponsor. The sponsor advised at question 14 that the visa applicant was the sponsor’s adopted child. On 12 August 2022, the Department received a letter from the applicants’ representative seeking an urgent and timely decision as the visa applicant turned 18 on the 14th of that same month. At question six of the Form 40CH, Karen stated that she was an Australia citizen by birth. This was confirmed by her Australian passport and birth certificate. The sponsor declared at question 15 that she adopted the applicant after she became an Australian citizen. The parties submitted the following court documents (not an exhaustive list): · Originating Summons issued by the Children’s Court in Nairobi on 6 September 2018, to attend the honourable magistrate’s chambers on 8 October 2018;· Children’s Officer’s Report of a Court Order dated 7 September 2018 by the Department of Children Services; and· Court Decree issued by the Children’s Court in Nairobi on 10 December 2018, stating that the sponsor is appointed the legal guardian of Bridgit; is granted sole custody, care and control of the visa applicant; and is allowed to make travel arrangements and travel with visa applicant out of the jurisdiction of the court. The parties argued that the visa applicant met the criteria for an Adoption visa on the basis that the sponsor had complied with the relevant laws in Kenya; that the Children's Court in Kenya has recognised the adoptive relationship between the parties and the same court has exercised its full judicial powers to grant the sponsor full parental custody and responsibility for the visa applicant. Furthermore, it was argued the visa applicant had permission to leave Kenya, and that the child’s best interest was served by granting the visa. On 8 August 2022, the Department invited the applicant to comment on adverse information received during the assessment of the visa application on 4 August 2022. This included that: · It is not reasonably practicable for a foreign citizen to adopt a Kenyan child due to the moratorium currently in place for intercountry adoptions (where the adopter is a foreign citizen);· Customary adoption can only occur when the person is a member of the child’s family;· As the sponsor did not marry the visa applicant’s uncle as intended, she is not a member of the visa applicant’s extended family, thus customary adoption cannot be considered; and · While the provided decree appoints legal sole custody (full and permanent parental rights) of the visa applicant to the sponsor, it does not constitute a customary adoption.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant meets the criteria of cl.102.211. Cl.102.211(1) requires that the applicant meets the requirements of subclause (2), (3), (4) or (5).Background On 18 July 2022, an application for a Class AH Subclass 112 (Adoption) visa was validly lodged. The visa applicant was born on 14 August 2004 in the Republic of Kenya. Her identity documents indicate that she is a citizen of Kenya. At the time of application, she was aged 17 years and 11 months. The submitted birth certificate states the visa applicant’s biological mother is Carolyne Nangila Masika and her biological father is Geoffrey Juma Kapukha. At question two in the Form 40CH – Sponsorship for a child to migrate to Australia, it was stated that Karen Ann ROBINSON was the sponsor. The sponsor advised at question 14 that the visa applicant was the sponsor’s adopted child. On 12 August 2022, the Department received a letter from the applicants’ representative seeking an urgent and timely decision as the visa applicant turned 18 on the 14th of that same month. At question six of the Form 40CH, Karen stated that she was an Australia citizen by birth. This was confirmed by her Australian passport and birth certificate. The sponsor declared at question 15 that she adopted the applicant after she became an Australian citizen. The parties submitted the following court documents (not an exhaustive list): · Originating Summons issued by the Children’s Court in Nairobi on 6 September 2018, to attend the honourable magistrate’s chambers on 8 October 2018;· Children’s Officer’s Report of a Court Order dated 7 September 2018 by the Department of Children Services; and· Court Decree issued by the Children’s Court in Nairobi on 10 December 2018, stating that the sponsor is appointed the legal guardian of Bridgit; is granted sole custody, care and control of the visa applicant; and is allowed to make travel arrangements and travel with visa applicant out of the jurisdiction of the court. The parties argued that the visa applicant met the criteria for an Adoption visa on the basis that the sponsor had complied with the relevant laws in Kenya; that the Children's Court in Kenya has recognised the adoptive relationship between the parties and the same court has exercised its full judicial powers to grant the sponsor full parental custody and responsibility for the visa applicant. Furthermore, it was argued the visa applicant had permission to leave Kenya, and that the child’s best interest was served by granting the visa. On 8 August 2022, the Department invited the applicant to comment on adverse information received during the assessment of the visa application on 4 August 2022. This included that: · It is not reasonably practicable for a foreign citizen to adopt a Kenyan child due to the moratorium currently in place for intercountry adoptions (where the adopter is a foreign citizen);· Customary adoption can only occur when the person is a member of the child’s family;· As the sponsor did not marry the visa applicant’s uncle as intended, she is not a member of the visa applicant’s extended family, thus customary adoption cannot be considered; and · While the provided decree appoints legal sole custody (full and permanent parental rights) of the visa applicant to the sponsor, it does not constitute a customary adoption.

Ratio Decidendi

Legal Principle Established

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