Syed (Migration)

Syed (Migration) [2023] AATA 386 (27 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Safeer Hussaini Syed
VISA APPLICANT:  Miss Arusha Fatima Syeda
REPRESENTATIVE:  Mr Nigel James Dobbie
CASE NUMBER:  2215273
HOME AFFAIRS REFERENCE(S):          BCC2021/2089271

MEMBER:Michael Cooke
DATE:27 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and remits the matter to the Department for reconsideration finding the visa applicant meets the following criterion for a Child (Migrant) (class AH) Adoption (subclass 102) visa:
·cl.102.211(2) of Schedule 2 to the Regulations

Statement made on 27 February 2023 at 12:16pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – adoption requirements – at least one adoptive parent overseas for more than 12 months before application made – impliedly immediately before – sponsor’s physical health – condition exacerbated by operation in home country and return to Australia as soon as COVID travel restrictions lifted – wife’s pregnancy complications – 16 months residence in home country and 4 months in Australia before application made – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.04(1), Schedule 2, cl 102.211(2)(b)(ii)
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 10 August 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 29 October 2021. The delegate refused to grant the visa on the basis that the applicant did not meet cl 102.211(2)(b).
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
An application for an Adoption visa (subclass 102) was lodged on 29 October 2021 naming the visa applicant, Miss Arusha Fatima Syeda.
The applicant was born on 4 September 2013 as evidenced by a copy of her Indian birth certificate. The birth certificate states her biological mother is Syeda Nazera Fatima and her biological father is Syed Asker Hussaini.
At question 27 in the Form 47CH – Application for migration to Australia by a child, the applicant declared Safeer Hussaini SYED and Shaila NIHAAL were her parents.
At question two in the Form 40CH – Sponsorship for a child to migrate to Australia, Mr Safeer Hussaini SYED stated that he was the sponsor. Mr SYED advised at question 14 that the applicant was his adopted child and at questions 37-38 he declared that he was in a relationship with Ms Shaila NIHAAL.
At question six of the Form 40CH, Mr SYED stated that he was a citizen of Australia by grant. Departmental records confirmed that he acquired his citizenship on 16 May 2019. The sponsor declared at question 15 that he adopted the applicant after he became an Australian citizen.
He also stated at question 42 of the Form 40CH that his partner, Shaila, was an Australian permanent resident. Departmental records confirm that she was granted a Partner (subclass 100) visa on 11 December 2019.
A document titled ‘Adoption Deed’ was provided with the application. This document stated that Safeer Hussaini SYED and Shaila NIHAAL adopted Aroush Fathima SYEDA on 7 May 2021.
The delegate found that according to Departmental records, the sponsor and his partner were not overseas for more than 12 months immediately prior to lodgement of the visa application.
On 4 July 2022, the Department invited the applicant to comment on this adverse information received during assessment of the visa application:
“The applicant's Subclass 102 Adoption visa application was lodged on 22 October 2021. To satisfy sub-paragraph 102.211(b)(ii), at least one of the adoptive parents must have been residing offshore for more than 12 months immediately prior to the date of application lodgement (Tribunal emphasis) from at least 28 October 2020 until 29 October 2021. In the 12 months prior to 28 October 2021, neither applicants’ adoptive parents were offshore for more than 12 months immediately prior to that date. Therefore, the applicant may not satisfy sub-paragraph 102.211(b)(ii).”
On 15 July 2022, the applicant provided the following documents:
A supporting letter from Mr SYED dated 6 July 2022, outlining the reasons for being “unable to submit the visa application (subclass 102) immediately after his return to Australia”.
He elaborated the following circumstances:
Since 2017, Mr SAYED has suffered from ulcerative colitis. After experiencing discomfort but receiving clear medical results in India during April 2021, he decided to seek further advice in Australia. At the same time, he and his wife discovered that they were expecting their second biological child.
Due to complications during her first pregnancy, his wife was advised that she may need to undergo a caesarean section. She decided to obtain a second opinion from her obstetrician located in Australia.
As Mr SAYED required further medical testing scheduled in December 2021, and Shaila’s (his wife) due date was fast approaching, they both decided to remain in Australia to undergo the medical tests and await the birth of their child.
They lodged Adoption visa (subclass 102) applications so their three adopted children could stay with them in Australia.
Numerous medical documents showing treatment of Mr SAYED’s severe ulcerative colitis between 2017 and 2022.
Australian birth certificate of the Safeer SAYED and Shaila’s NIHAAL’s biological child on 7 December 2021.
LEGISLATION
102.21 Criteria to be satisfied at time of application
102.211
(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) a person who is not in a married relationship or de facto relationship, and 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 or de facto partners, 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 a Child Visa Processing Centre
(ii) has approved the prospective adoptive parent and the spouse or de facto partner 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 or de facto partner; 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 or de facto partner 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 or de facto partner.
Adoption is defined under Regulation 1.04:
Reg 1.04 Adoption
(1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
(a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
(b) 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; or
(c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.
(2) For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b) 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; and
(c) the Minister is satisfied that:
(i) formal adoption of the kind referred to in paragraph (1)(b):
(A) was not available under the law of the place where the arrangements were made; or
(B) was not reasonably practicable in the circumstances; and
(ii) the arrangements have not been contrived to circumvent Australian migration requirements.
REASONS and FINDINGS
The Tribunal finds from the information on file that the applicant meets reg.1.04(1) in that the visa applicant was adopted under:
(b) formal adoption arrangements made in accordance with the law of another country (India), 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.
The issue in the present case is whether the review applicant (the applicant) met the overseas residency requirements for grant of an Adoption visa in sub-paragraph 102.211(b)(ii).
The legislation requires that the applicant must have been adopted by a person who had been residing overseas for more than 12 months at the time of the application.
Regarding the 12 months required period of overseas residence, the Court has commented on this in the case of Nguyet Huong Phung v MIEA. The Court considered a similarly worded, previous version of the provision which required that the applicant be ‘a child who has not turned 18 adopted by an Australian citizen … where: the adoptive parent has been residing overseas for more than 12 months at the time of the application…’. The Court held that this required the 12 months or more to be prior to the time of application (impliedly, immediately prior to the time of application) and it was not sufficient if the adoptive parent has had, at some earlier time, a period of more than 12 months overseas residence.
However, the Tribunal is satisfied that despite the language appearing to suggest a single period of 12 months or more is required and not several periods amounting to 12 months or more - the issue is not definitive.
Departmental policy states that ‘brief visits to Australia by the adoptive parent during that period may be counted towards the 12-month period of absence from Australia. (A visit may be considered incidental if it was brief (a matter of weeks) and for business or personal reasons. Brief breaks within the 12-month period are not expressly addressed in the regulations. However, temporary travel to Australia during the relevant period is not necessarily inconsistent with a period of residence overseas, if it can be said that the person nevertheless continues to reside overseas.
The applicant via his representative’s submission (tendered to the Tribunal) has insisted he meets the 12 months residence requirements prior to making the application for adoption on 29 October 2021.
The representative’s submission made the following points:
The issue arising in each of the decisions under review is whether the applicants satisfied clause 102.211(2), such that if they did, they would be found to satisfy clause 102.211.
The issue is one of interpretation of the law. The delegate applied a test that is not found in the language of subclause 102.211(2)(b); namely the delegate required that one of the adoptive parents of the applicants had been residing overseas for more than 12 months 'immediately prior to visa application'.
When one has regard to the language of subclause 102.211(2)(b), it merely requires that one of the adoptive parents
‘had been residing overseas for more than 12 months at the time of the application’.
Respectfully to the delegate, the language of subclause 102.211(2)(b) contains no such temporal requirement of 'immediately prior to the visa application'.
There is no requirement that that 12 months of residing overseas had to be in the 12 months immediately before the visa application is made.
The words 'at the time of application' merely fix an end point in time at which to determine whether the 12 months of overseas residence had been met. What it does not do is limit the period in which that overseas residence is to be counted to the 12-month period immediately before the visa application is made.
The interpretation and approach of the delegate has the result of excluding an adopted child where, as is the case of the present reviews, extenuating circumstances required the applicants' adoptive parents to return to Australia, despite residing in India from 28 February 2020 to June 2021, a period of approximately 16 months, and where the visa applications were made only three months after they returned to Australia. Such an approach is simply untenable. It is hard to see how such an inflexible approach serves the best interests of an adopted child.
The Tribunal agrees with the conjecture of the representative regarding the wording in the criterion. There are no words called “immediately prior” to be found in the legislative criterion. The use of those words seems to have been imported into the decision by the delegate. This may have been prompted by misconstruing the discretionary aspect of the 12 months overseas residence requirement outlined in Department policy. In any case, (the Court has long established) the Tribunal cannot be “a slave to policy” (see Drake) in performing its review function.
It can readily be seen (from all the evidence before the Tribunal) that the applicant had a medical emergency that required him to return to Australia. He was prevented from doing so by the Indian pandemic flight ban. His wife had a similar though much less immediately serious health concern but also could not travel. As he informed in oral evidence, the surgery he underwent in India was not only unsuccessful - but exacerbated his condition. His only hope was to get on a plane to Australia as soon as the pandemic flight ban ended in India and which he did. He then had to schedule an available appointment slot from his busy specialist and await the inevitable second operation to remedy the consequences of the (unsuccessful) first. This further lengthened his stay and the time before making the visa application.
His wife, at the same time, had had previous pregnancy difficulties – she informed in oral and written evidence. She was similarly alarmed that her second pregnancy could be impugned by medical complications she had with her first birthing. The principal reason why the parties chose to adopt Indian family members was their desire for a family. Her fear was sourced from her previous pregnancy and her doctor’s suggestion that this might not happen again. Thus, having fallen pregnant suddenly a second time, she was at great pains to return and see her Australian obstetrician. The Tribunal observes that, fortuitously, she later gave birth successfully to a second child.
The parties were both prevented from an earlier departure by the Indian Government flight ban. They were in a situation where, having decided to adopt the 3 children, (in consultation with the birth parents they informed) - they wished to make immediate applications for Adoption visas for their adopted children. However, they were unable to do so in India due the onset of the pandemic lockdown. Additionally, once they had arrived in Australia their significant health care needs effected the time of visa application significantly. The applicant required urgent surgery and his wife had her own serious medical concern – the birth of a child.
The fact remains that the applicant and his wife did spend a full unbroken16 months residing in India. This was from 28 February 2020 to June 2021 according to their Movement Records. The only reason why they applied for the adoption of their nieces and nephews in Australia was their inability to do so in India during the pandemic. The applicant also had a serious and deleterious operation during that time. The delegate insisted that ‘the adoptive parents were here for a consecutive four months immediately prior to application’. This may be true, but it was entirely a product of ‘extenuating circumstances’ in Australia which were a direct by-product of their medical travails in India. The fact is that they had already spent 16 months (solely in India) as residents in the family home in Hyderabad - they informed in oral evidence. Without the distraction of their urgent health circumstances, they could well have applied much earlier.
The Tribunal, therefore, is satisfied that discretion should be extended to the applicant for the above reasons. Therefore, the visa applicant does meet the criterion in subclause 102.211(2)(b)(ii).
The Tribunal further finds that it 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. Furthermore, the Tribunal notes that the adoptive parent has lawfully acquired full and permanent parental rights by the adoption from the Indian authorities. This finding further satisfies subclauses 102.211(2)(d) and (e).
Thus, the Tribunal finds that the visa applicant now satisfies all the requirements of cl.102.211(2) of Schedule 2 to the Regulations.
decision
The Tribunal sets aside the decision under review and remits the matter to the Department for reconsideration finding the visa applicant meets the following criterion for a Child (Migrant) (class AH) Adoption (subclass 102) visa:
·cl.102.211(2) of Schedule 2 to the Regulations
Michael Cooke
Senior Member

[2023] AATA 386

27 February 2023

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