Srilaphat (Migration)

[2017] AATA 828

Srilaphat (Migration) [2017] AATA 828 (12 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Sajanan Srilaphat
Mr Peter Gerard Henskens

VISA APPLICANT:  Miss Winitta Srilaphat

CASE NUMBER:  1618636

DIBP REFERENCE(S):  OSF2016/011671

MEMBER:Kira Raif

DATE:12 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 12 May 2017 at 2:19pm

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – Relevant adoption requirements – Relevant approval by the competent authority – 12 months residing overseas – Implied approval – Ministerial Intervention referral

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulation 1994, Schedule 1, Schedule 2, cl 101.211, r 1.03

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 7 October 2016 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 is a national of Thailand, born in September 1999. She previously applied for an Orphan Relative visa but that application was refused. The visa applicant applied for the Child (Adoption) visa on 27 July 2016. The delegate refused to grant the visa on the basis that cl. 102.211 was not met because the delegate was not satisfied the applicant met the relevant adoption requirements. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicants appeared before the Tribunal on 8 May 2017 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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. There is no evidence before the Tribunal to suggest that the applicant meets any of the key criteria for the subclass 101 or subclass 117 visas.

5. 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.

   (3)An applicant meets the requirements of this subclause if:

   (a)the applicant has not turned 18; and

   (b)the applicant is resident in an overseas country; and

   (c)either:

   (i)an unmarried person who is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen has undertaken in writing to adopt the applicant; or

   (ii)spouses, at least one of whom is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, have undertaken in writing to adopt the applicant; and

   (d)a competent authority in Australia:

   (i)has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or

   (ii)has approved the prospective adoptive parent and the spouse of the prospective adoptive parent as suitable adoptive parents for the applicant.

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

   (a)the applicant has not turned 18; and

   (b)the applicant is resident in an overseas country; and

   (c)a competent authority in the overseas country has allocated the applicant for prospective adoption by a person who is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, or such a person and that person's spouse; and

   (d)either:

   (i)arrangements for the adoption are in accordance with the Adoption Convention; or

   (ii)the adoption is of a kind that may be accorded recognition by regulation 5 of the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998; and

   (e)a competent authority in Australia:

   (i)has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or

   (ii)has approved the prospective adoptive parent and the spouse of the prospective adoptive parent as suitable adoptive parents for the applicant.

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

   (a)      the applicant has not turned 18; and

   (b)      the applicant was adopted in accordance with the Adoption Convention, in an Adoption Convention country, by a person who was an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen when the adoption took place, or by such a person and that person's spouse.

6. Regulation 1.03 defines ‘a competent authority’ in relation to adoption.

   Is the applicant an adopted child?

7. The applicant was born in September 1999 and is under the age of 18 at the time the application was made and at the time of this decision. She claims to have been adopted by her maternal aunt and the aunt’s partner, the review applicant.

8. The applicant presented with her application a copy of the Family Court Order permitting the child to live with her aunt and uncle who have been granted parental responsibilities for the child. The Tribunal acknowledges the existence of this Order but notes that the grant of parental rights does not equate to adoption, nor is the Family Court vested with the responsibilities for approving adoption. It is not a competent authority in Australia for the purpose of cl. 102.211. Thus, while the Tribunal accepts that the visa applicant’s aunt and uncle have been given parental responsibilities, that is not sufficient to evidence the child’s adoption or approval by the competent authority.

9. There is no evidence that the visa applicant was adopted overseas by a person who was not an Australian citizen or permanent resident and had been residing overseas for more than 12 months at the time the application was made. The Tribunal is not satisfied the visa applicant meets cl. 102.211(2). There is no evidence that a competent authority in the overseas country has allocated the applicant for prospective adoption and that such arrangements are in accordance with the Adoption Convention or of a kind that may be accorded recognition. The Tribunal is not satisfied the applicant meets cl. 102.211(4). There is no evidence that the applicant was adopted in accordance with the Adoption Convention. The Tribunal is not satisfied she meets cl. 102.211(5).

10. The applicant seeks to rely on cl. 102.211(3). The Tribunal is mindful that cl. 102.211(3)(b) requires the applicant to be resident in an overseas country while the applicant argues she has been resident in Australia. With respect to the requirements set out in cl. 102.211(3)(d), the applicant provided a number of documents with her application indicating that the sponsor engaged with FACS to enable the approval of the adoption. A variety of additional documents have been given to the Tribunal to show that the sponsor is pursuing the Australian authority to approve the adoption or make the relevant assessment. The review applicant’s evidence to the Tribunal is that they have done everything possible to allow this to happen but that the FACS refused to formally approve the adoption. The Tribunal accepts that everything has been done to obtain the approval but finds that the relevant approval has not been granted. The sponsor concedes that there is no relevant approval by the competent authority.

11. The review applicant argues that the Regulations do not specify how the approval by the competent authority in Australia is to be made or what evidence is required. The review applicant argues that the approval can be implied from the various orders and agreements that had been made and that where it is not possible to obtain the document, its existence can be implied. The Tribunal does not accept these arguments.

12. While the nature of the approval or the documentation evidencing the approval is not prescribed in the Migration Act or the Regulations, the legislation does refer to the competent authority in Australia approving the adoptive parent. In the Tribunal’s view, that requires a positive act of approval and an implied approval based on a variety of processes is not sufficient. Contrary to the review applicant’s submission, the Tribunal is not satisfied that there exists a ‘presumption of approval’.

13. The Tribunal acknowledges that the visa applicant has signed a Consent to her adoption and that the consent has been witnessed by the relevant delegate. However, the Tribunal is not satisfied that the procedure associated with the consent is equivalent to, or can replace, the adoption approval process. That is, while the Tribunal acknowledges the review applicant’s evidence that the competent authority had undertaken all the necessary steps up to the approval, it is not in dispute that the approval has not been issued.

14. Generally, the Tribunal accepts that the review applicant and partner may have been assessed as being suitable parents, that they have been granted parental responsibilities in relation to the visa applicant and that they have taken all possible steps to obtain the approval but have not been able to. However, the Tribunal has formed the view that the legislation requires evidence of a positive steps taken by the competent authority to approve the prospective adoptive parent and this was not done in the present case. The Tribunal is not satisfied the requirements of cl. 102.211(3) are met.  The Tribunal is not satisfied the visa applicant meets cl. 102.211.

15. The Tribunal has also assessed the applicant against the other subclasses in Class AH. Clause 101.211(1)(c)(i) provides that the applicant must either be a natural child or a step-child of the sponsor. In this case, there is no evidence that the child is either a natural child or a step-child of the review applicant and the Tribunal is not satisfied that the visa applicant meets cl.101.211(1)(c)(i). Clause 101.211(1)(c)(ii) refers to an adopted child and the Tribunal is not satisfied that she is. The Tribunal is not satisfied that the visa applicant meets cl.101.211(1)(c) and cl.101.211. There is no evidence that the visa applicant’s parents are dead, of unknown whereabouts or incapacitated and the Tribunal is not satisfied the visa applicant is an orphan relative of the Australian relative.

16. The Tribunal has considered the applicant’s circumstances. The Tribunal notes that the visa applicant has been under the care of the review applicant for a number of years, the review applicant has been granted parental responsibilities in relation to the child and had been actively caring for the child. The Tribunal acknowledges the review applicant’s evidence that the child’s parents are not available to care for her. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    Conclusion

17. For the reasons given above the Tribunal finds the visa applicant does not satisfy the requirements of cl.102.211.

    DECISION

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

    Kira Raif

    
    

    Senior Member