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 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 14^th 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.
On 10 August 2022, the Department received a response to a dispatched invitation to comment. It included a letter from the representative stating:
‘With respect to the Kenyan authorities’ views regarding ‘legal customary
adoption’ (which is presumed to refer to kinship adoption), given that the
requirements of legal adoption in Kenya are not met, it is only the Australian
legislative requirements which are relevant to this application.
It would therefore be an error of law for the Department to conflate the requirements
of ‘kinship adoption’ or ‘legal customary adoption’ pursuant to Kenyan law with the requirements of ‘customary adoption’ pursuant to Australian law.’
On 12 August 2022, a request for urgent processing of the visa application was made.
On 14 August 2022, the applicant turned 18 years old.
On 18 October 2022, the delegate acting on behalf of the applicant refuse to grant the applicant the visa.
The delegate stated he or she was not satisfied that the visa applicant met the definition of ‘adopted’ as dictated in Regulation 1.04. The delegate argued that the applicant has not provided any evidence that she was formally adopted in Australia or another country. Rather, she claims that her circumstances meet the definition and requirements of customary adoption under Australian law. As per Regulation 1.04, for a child to be considered as customarily adopted, the adoption needs to have occurred outside Australia.
It is important to note, the delegate further stated, that the issue of ‘parental responsibility’ or ‘custody’ is not in question. The provided Court Decree has been considered, and while it confers legal sole custody (full and permanent parental rights) of the applicant to the sponsor, it does not establish customary adoption.
On 13 December 2022, the review applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal.
Relevant law
At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained three subclasses: subclass 101 (Child); subclass 102 (Adoption) and subclass 117 (Orphan relative) – Item 1108 of Schedule 1 of the Regulations. The applicant sought to be assessed against the subclass 102 (Adoption) visa.
According to the time of decision criteria under 102.221 states that the applicant continues to satisfy the criteria in clauses 102.211 and 102.213.
In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). One of the issues in question in this case is cl 102.211 which is set out below:
(1) The applicant meets the requirements of subclause (2), (3), (4) or (5).
(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.
Was the applicant an adopted child at the time of application?
The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had submitted with their application a statement issued by the Children’s Court in Nairobi in December 2018 which refers to the sponsor being granted sole custody of the visa applicant. The delegate noted that this document does not confirm that the adoption of the applicant had been completed and the sponsor previously informed the Tribunal that she has been unable to complete the formal adoption process due to the moratorium on adoptions in Kenya. The delegate concluded that the visa applicant did not meet cl. 102.211(2)(d) because the sponsor had not lawfully acquired full and permanent parental rights by the adoption.
The Tribunal is mindful that departmental policy recognises that customary adoption as capable of meeting that requirement. To find otherwise would render the customary adoption option in the regulations nugatory. Thus, if the customary adoption is recognised, it is possible that the adoptive parent had lawfully acquired parental rights by adoption without the formal adoption court orders.
There is no judicial authority on cl.102.211(2)(d) and the definition of rights. Departmental policy notes that orders that grant only guardianship, custody, or day-to-day parental responsibility would not satisfy the requirement that the adopting parent has lawfully acquired ‘full and permanent parental rights’, but that orders that conferred a right to decide where the child shall live may satisfy this.
The Family Law Act 1975 (Cth) (‘the FLA’) does not discuss ‘guardianship’ or ‘custody’ in relation to parenting arrangements or orders, following legislative reform in 1995. It also omits any references to parenting rights. The FLA instead requires that when making a parenting order, the issue of parental responsibility must be dealt with, pursuant to s.61DA. Parental responsibility is broadly defined in s.61B as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Shortly after the 1995 reforms, the Full Court of the Family Court in B v B: Family Law Reform Act 1995 (1997) FLC 92 discussed the definition of parental responsibility, noting that it would appear to cover the scope of guardianship and custody under the previous Part VII of the FLA, and may be wider.
The FLA connects parental responsibility to decisions in relation to the child on issues that are major long-term issues. These issues are defined in the FLA as issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about: (a) the child's education (both current and future); and (b) the child's religious and cultural upbringing; and (c) the child's health; and (d) the child's name; and (e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The connection between parental responsibility and decisions about major long term issues is also made in s.60CC(3), which lists additional considerations in how a court determines what is in a child’s best interests. This includes the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child.
In the Tribunal’s view, the broad duties, powers, responsibilities and authority conferred by ‘parental responsibility’ in the FLA, particularly in relation to decision-making on issues that are major long-term issues, are comparable to the ‘full and permanent parental rights’ discussed in cl.102.211(2)(d).
The Children Act in Kenya covers parental responsibility, custody, guardianship, and care and protection. Part III of this Act discusses parental responsibility and defines parental responsibility in virtually identical terms to Australian legislation. The definitions of ‘custody’ and ‘guardianship’ in this Act imply something less than parental responsibility.
The evidence indicates that the sponsor has legal custody and parental responsibility for the child while she was a minor. The sponsor has taken care of the child, as part of her role of an accepted member of the Luhya people according to its customs and practices, because the visa applicant as a child has not had meaningful contact with her mother and because her father is deceased. Evidence before the Tribunal indicates that the Children’s Court in Nairobi has granted custody of the child to the sponsor, allowing the child to travel outside of Kenya without the court’s intervention, and granted full parental responsibility, guardianship and sole custody of the child to the sponsor.
The Tribunal is satisfied that the rights granted to the sponsor by the court are comparable to full and permanent parental rights. In particular, the Tribunal is satisfied the sponsor has been given a right to make decisions on major long-term issues in relation to the visa applicant, including the child’s education, health, upbringing, travel and place of residence. The Tribunal is of the view that such rights are consistent with the nature of ‘full and permanent parental rights’ described in the FLA and contemplated by cl. 102.211(2)(d).
The Tribunal finds that the visa applicant meets clause 102.211 as part (2)(d) has been satisfied
As the applicant was aged under 18, not an Australian citizen or permanent resident and the had been residing in Kenya for more than 12 months at the time of application and as the Tribunal is satisfied the residence of the adoptive parent was not contrived to circumvent the adoption requirements, then all the other elements of subclause 102.211(2) were met
Part (2) of clause 102.211 was satisfied, the Tribunal is not required to consider the other requirements under parts (3), (4) and (5).
Accordingly, clause 1012.211 is satisfied at the time of application.
Was there compliance with the laws relating to the adoption of the visa applicant’s country?
With regards to clause 102.213, it states the laws relating to adoption of the country in which the child is normally resident have been complied with.
In Rani v MIAC [2012] FMCA 705, the Court upheld the Tribunal’s decision not to accept as conclusive (by reference to other evidence) an Indian Court decision approving the grant of the deed of adoption. Whether the laws relating to adoption of the country in which the child is normally resident have been complied with is a matter of fact for the Tribunal.
The sponsor obtained a guardianship and a parental order in 2018. Formal adoption for foreigners was not necessarily an option for her as that option was not a reasonably practical one to pursue.
On 27 November 2014, the Kenyan national cabinet issued a “Moratorium" on all foreign adoptions”. That decision was informed by the Cilobal Report on Trafficking in Persons which cited Kenya as a source, transit and destination county in human trafficking. This moratorium has been the subject of many cases where foreigners have wanted to adopt children in Kenya and adoption orders have been granted to foreigners after exhaustive litigation. One such case is the case of P M (Baby) |20I7| eKLK which was held before the High Court of Kenya, in Nairobi. In this case, a married couple living in Nairobi but having Indian nationalities wanted to adopt a child in Kenya. The Kenyan court determined the moratorium had not been properly gazetted and applied the principle that any decision made should be in the best interest of the child under article 53 of the Constitution and international law.
Having regard to this country information and the absence of any adoption court order from Kenya, the Tribunal is not satisfied that the laws relating to adoption in Kenya in which the visa applicant is normally resident have been complied with.
Time of criteria under cl 102.221
As mentioned above, under clause 102.221, the applicant continues to satisfy the criteria in clauses 102.211. and 102.213.
Given the visa applicant did not meet the mandatory criterion for a grant of a Subclass 102 Adoption visa under cl 102.213, the time of criteria cannot be satisfied.
As the representative pointed out, the visa applicant had reached the age of majority in August 2022 and cannot meet the age requirement of cl 102.211 for the purposes of cl 102.221.
The Tribunal accordingly finds that the visa applicant does not satisfy cl.102.221.
Alternative Subclasses under Class AH
The Tribunal has turned its mind as to whether the visa applicant meets the criteria in alternative subclasses within the visa class.
The Tribunal is satisfied that the review applicant is an Australian citizen.
Based on the court orders set out in this decision and the Tribunal’s findings about there being a customary adoption under Australian law, the Tribunal is satisfied that the review applicant adopted the visa applicant in 2018. Cl.101.211(c) requires that the visa applicant is (i) (A) the child (other than the adopted child); or (B) the step child; or (ii) was adopted 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. In the matter before it, the Tribunal is satisfied that the visa applicant was not the child or stepchild of the review applicant. In the matter before it, the Tribunal is satisfied that the visa applicant was adopted by the review applicant, and that at the time of adoption the review applicant was a holder of a permanent visa. For these reasons the visa applicant does not meet the requirements of cl.101.211(c).
Therefore, the Tribunal finds that the visa applicant does not meet the alternative requirements of the dependent child visa subclass 101.
To meet the requirements of cl.117.211 the visa applicant needs to establish that at the time of application she is the orphan relative of an Australian relative of the applicant (the review applicant), or is not an orphan relative only because she has been adopted by the Australian relative (the review applicant). The definition of orphan relative requires, as per r.1.14(b) that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. While the Tribunal is satisfied the visa applicant’s father had been deceased at the time of application, the submitted evidence is that her biological mother was alive and that she was not of unknown whereabout and not permanently incapacitated. Based on the evidence before it the tribunal is not satisfied that the time of application the visa applicant’s mother was not able to care for the visa applicant. For these reasons the Tribunal is not satisfied that the visa applicant meets the definition of orphan relative in r.1.14 at the time of application. The Tribunal is not satisfied the visa applicant meets the requirements of cl.117.211.

Therefore, the Tribunal finds that the visa applicant does not meet the alternative requirements of the orphan relative visa subclass 117.
Ministerial intervention
The Tribunal considers there are unique and exceptional circumstances that warrant bringing this matter to the Minister’s attention.
The sponsor is an Australian citizen who has been living in Kenya since 2014 and outside of Australia for the last 20 years undertaking humanitarian work. Past roles include being a director for World Vision’s Global Centre Disaster Management based in Nairobi. The sponsor has had a long-term relationship with the visa applicant’s extended family. The sponsor began caring for the visa applicant in 2015 and then permanently at the beginning of 2016.
The visa applicant’s biological father, a member of the Luhya people, has never played a meaningful parental role in her life. The father passed away in 2014. After her mother entered into a new spousal relationship, the visa applicant was raised by her maternal grandmother. However, the grandmother became too frail and ill to care for the visa applicant, then aged about 9 or 10. She was placed in her father’s extended family. Overstretched financially and burdened by their own large families, they were unable to pay for her education or address her health needs, including a severe hearing impairment caused by contracting meningitis at the age of 5 or 6. As the sponsor had been engaged to the visa applicant’s uncle some time ago, she had been accepted into the family and the sponsor was asked to care for the visa applicant under the customs of the Luhya people.
As the evidence above demonstrates, the sponsor obtained a guardianship order in 2018. Formal adoption for foreigners was not necessarily an option. On 27 November 2014, the Kenyan national cabinet issued a “Moratorium" on all foreign adoptions”. That decision was informed by the Global Report on Trafficking in Persons which cited Kenya as a source, transit and destination country in human trafficking. This moratorium has been the subject of many cases where foreigners have wanted to adopt children in Kenya and adaption orders have been granted to foreigners after exhaustive litigation. One such case is the case of P M (Baby) |20I7| eKLK which was before the High Court of Kenya in Nairobi. In this case, a married couple living in Nairobi, but having Indian nationalities, wanted to adopt a child in Kenya. The Kenyan court determined the moratorium had not been properly gazetted and applied the principle that any decision made should be in the best interest of the child under article 53 of the Constitution and international law. The Kenyan parliament later legislated the ban on adopting Kenyan children by foreign nationals to close ‘existing loopholes’ in 2021.
Quite understandably, the sponsor sought to obtain guardianship and parental orders in the absence of any reasonably available formal adoption pathways for foreign citizens through Kenya’s court system.
In this decision on a refused Adoption visa, the Tribunal has made a finding that there is customary adoption in accordance with the usual practice or recognised custom in Kenya, and this is recognised under Australian law. However, clause 102.213 which states the laws relating to adoption of the country in which the child is normally resident have been complied with, were not satisfied, given the operation of Kenya’s 2014 moratorium on adoption of Kenya children to foreign citizens.
Given the impact of the 2104 moratorium, the Tribunal is confident the applicant would have otherwise met the time of application criterion under cl 102.213. The Tribunal notes that the applicant is now aged 18 and therefore she does not have satisfied the time of decision criteria.
For all intents and purposes, the authorities in Kenya have recognised the sponsor’s right to and responsibility to make decision concerning the daily care and control of the child according to regulation 1.10 of the Migration Regulations, at the time of application. The Tribunal is satisfied there exists a genuine parent-child relationship between the review applicant and visa applicant, who is a vulnerable young woman with a significant hearing impediment.
The Tribunal considers there are strong compassionate circumstances that if not recognised could result in serious ongoing and irreversible harm to an Australian citizen, namely the review applicant who has provided emotional and financial care for the visa applicant for many years and which was recognised by the Kenyan authorities in 2018.
Based on the available evidence about the applicant’s circumstances and their closeness of this Australian family unit, the Tribunal will be making a referral to the minister for his urgent consideration under s 351 of the Act.
Conclusion
The Tribunal finds the visa applicant does not meet the requirements of the adopted child subclass 102.
The applicant does not meet the requirements of the other alternative Subclasses for a Class AH visa application.
The Tribunal recommends the Minister urgently consider personally intervening in this matter.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Child (Class AH) visa.
Brendan Darcy
Member