Sewak (Migration)

[2018] AATA 4766

Sewak (Migration) [2018] AATA 4766 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mr Anishwar Kumar Sewak
Mrs Peta Kumar

VISA APPLICANT:  Miss Ashlini Kumar Sewak

CASE NUMBER:  1812851

DIBP REFERENCE(S):  OSF2017/052345

MEMBER:Hugh Sanderson

DATE:10 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2018 at 9:29am

CATCHWORDS
MIGRATION – Child (Class AH) visa – Subclass 102 (Adoption) – applicant under 18 – sponsor residing overseas for more than 12 months – movement records – multiple short visits to Fiji – Fiji not a signatory to the Adoption Convention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 102.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 31 March 2017. The delegate refused to grant the visa on the basis that the criteria in cl.102.211(2)(b)(ii) was not met as the adoptive parent of the visa applicant had not been residing overseas for more than 12 months at the time of the application.

   Background

3. The visa applicant was born on 10 August 2003. It was reported that her biological mother, Priya Lata, did not have a partner and she abandoned the visa applicant after her birth. The visa applicant was placed into the care of the review applicants on 10 October 2003 and on 24 October 2003 in the Magistrates Court at Ba in Fiji sitting as a Juvenile Court an adoption order was made in favour of the review applicants. The current application was filed on 31 March 2017.

4. The sponsor of the visa applicant was the visa applicant’s adoptive mother, Peta Kumar. She was born in Australia and is an Australian citizen. The movement records of Peta Kumar show that she has travelled out of Australia over the following periods:

   ·From 16 March 2002 to 25 March 2002;

   ·From 18 October 2003 to 17 November 2003 (30 days);

   ·From 19 December 2005 to 3 January 2006 (15 days);

   ·From 9 September 2016 to 12 September 2016 (3 days);

   ·From 23 February 2017 to 4 March 2017 (9 days); and

   ·From 16 August 2017 to 29 August 2017 (13 days).

5. The sponsor’s husband, Anishwar Sewak, was born in Fiji. He became an Australian citizen in 1995. The movement records of Anishwar Sewak show that he has travelled out of Australia over the following periods:

   ·From 16 March 2002 to 25 March 2002;

   ·From 18 October 2003 to 8 November 2003 (21 days);

   ·From 15 November 2003 to 1 December 2003 (16 days);

   ·From 19 December 2005 to 3 January 2006 (15 days);

   ·From 16 April 2009 to 22 April 2009 (6 days);

   ·From 3 August 2011 to 9 August 2011 (6 days);

   ·From 29 April 2012 to 13 May 2012 (14 days);

   ·From 6 October 2013 to 10 October 2013 (4 days);

   ·From 18 September 2014 to 21 September 2014 (3 days);

   ·From 9 September 2016 to 25 September 2016 (16 days);

   ·From 23 February 2017 to 4 March 2017 (9 days);

   ·From 29 March 2017 to 2 April 2017 (4 days); and

   ·From 16 August 2017 to 29 August 2017 (13 days).

6. The delegate who considered the application found that as the sponsor of the visa applicant had not resided with the applicant in Fiji for more than 12 months at the time of the application and so the criteria in cl.102.211(2) was not met. Accordingly, the application was refused.

7. The review applicants appeared before the Tribunal on 10 October 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicant meets the criteria in cl.102.211(2) which, in part, requires the person who adopted the visa applicant to have been residing overseas for more than 12 months at the time the application.

10. The requirements of cl.102.211 specify that the visa applicant must, at the time of the application, meet one of four criteria with regards to the adoption. As the adoption has not been approved by a competent authority in Australia or made in accordance with the Adoption Convention in an Adoption Convention country, the requirement that must be satisfied for the visa applicant to meet the criteria is cl.102.211(2). This provides as follows:

    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.

11. The Tribunal finds that at the time of the application the applicant was 14 years old and therefore satisfies cl.102.211(2)(a).

12. The sponsor of the applicant, Peta Kumar, was born in Australia and at all times has been an Australian citizen. Her husband, Anishwar Sewak, became an Australian citizen in 1995, nine years before the birth of the visa applicant. As the visa applicant was adopted overseas by a person who was, at the time of the adoption, an Australian citizen the applicant meets the criteria in cl.102.211(2)(b)(i) and accordingly must satisfy cl.102.211(2)(b)(ii). This requires the adopting parent to have been residing overseas for more than 12 months at the time of the application.

13. The movement records of the review applicants show that at the time of the visa application they had not been residing overseas for more than 12 months. Both visa applicants confirmed the fact that they had not resided overseas for more than 12 months at the time of the application. They provided the reasons why it was not possible for them to reside in Fiji for the relevant period or be able to live with the visa applicant now in Fiji.

14. The Tribunal does not doubt the good intentions of the review applicants and their concern for the visa applicant. The fact is, however, that they had not been residing overseas for more than 12 months at the time of the application. This requirement cannot be waived. Accordingly, the criteria in cl.102.211(2)(b)(ii) is not met.

15. The parties affirmed at the hearing that a competent authority in Australia has not approved the prospective adoptive parents. Accordingly, cl.102.211(3) and (4) are not met. Fiji is not a signatory to the Adoption Convention and therefore the criteria in cl.102.211(5) cannot be met.

16. For the above reasons, the Tribunal finds that the applicant does not meet the criteria in cl.102.211.

17. There is no information before the Tribunal and no claims have been made that the visa applicant meets the criteria for the grant of a Subclass 101 Child visa or Subclass 117 Orphan Relative visa. Accordingly, the Tribunal finds that the applicant does not meet the criteria for the grant of any visa within the Child (Class AH) visas. Accordingly, the decision of the Department to refuse the visa must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the visa applicant a Child (Class AH) visa.

    Hugh Sanderson
    Member