Temwake (Migration) - [2022] AATA 4826

Temwake (Migration) [2022] AATA 4826 (21 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Shailla Summer Temwake
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  2010557
HOME AFFAIRS REFERENCE(S):          CLF2019/20583
MEMBER:David Crawshay
DATE:21 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 21 April 2022 at 12:28pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – grandchild of the sponsor – adopted child – no formal adoption arrangement – guardianship order – whether formal adoption not reasonably practicable – consent from biological father required – strong compassionate circumstances – serious, ongoing and irreversible harm – integration into the Australian community – migration pathway through a partner visa – statutory bar under s.48 – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04; Schedule 2, cl 802.212
CASES
M38/2002 v MIMIA [2003] FCAFC 131
WAIS v MIMIA [2002] FCA 1625
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 19 June 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 April 2019. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, cl.802.226A), the criteria to be met in this case include cl.802.212 which relates to whether the applicant is a dependent child of a person who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
The delegate refused to grant the visa on the basis that cl.802.212(1) was not met because the delegate was not satisfied that the applicant was the child of the sponsor.
The applicant appeared before the Tribunal on 15 March 2022. As she was eight years of age, the Tribunal directed its questions through the sponsor and the applicant’s representative. The Tribunal also heard from the sponsor’s husband, Mr Anthony Roman. The applicant was represented in relation to the review.
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 applicant was the child of the sponsor at the time of application and whether she continues to be so at the time of this decision.
Clause 802.212 provides as follows:
(1)   The applicant:
(a)is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and
(b)subject to subclause (2), has not turned 25.
(1A) If the applicant is a step-child of the person mentioned in paragraph (1)(a), the
     applicant is a step-child within the meaning of paragraph (b) of the definition of
     step-child.
(2)   Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
[emphasis in original]
At the time of application, the applicant must be a “dependent child” of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). “Dependent child” is defined in r.1.03 of the Regulations as follows:
"dependent child", of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i)is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions.
[emphasis in original]
Dependent child
The Tribunal has considered if the applicant satisfies the requirements of dependent child under cl.802.212(1). To do this, it has considered the definition of “child of a person” in s.5CA of the Act, which states as follows:
(1)   Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b)someone who is an adopted child of the person within the meaning of this Act.
(2)   The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3)   Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
[emphasis in original]
The Tribunal notes that at no stage has it been suggested that the applicant is the biological child of the sponsor. Evidence in the form of birth certificates confirms that the sponsor is the grandmother of the applicant. The Tribunal has therefore considered that the applicant could only be regarded as the sponsor’s child if the former were found to be the adopted child of the latter. It has therefore assessed the applicant against the requirements for an adopted child under s.5CA(1)(b) and r.1.04.
Adopted child
As above, s.5CA(1)(b) deals with the case of someone who is an adopted child of the person.
Under r.1.04, “adoption” is defined as follows:
(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.
[emphasis in original]
There being no evidence to demonstrate that formal adoption arrangements were made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children, the applicant does not meet r.1.04(1)(a).
Regarding r.1.04(1)(b), at no time has it been suggested that formal adoption was undertaken in accordance with the laws of another country, in this case Kiribati. This includes in a post-hearing submissions letter of the applicant’s representative dated 8 April 2022 where it was conceded that “the Applicant does not meet reg 1.04(1)”.[1] A guardianship order was made dated 27 December 2017; however, this cannot be regarded as a formal adoption order because the applicant’s biological father still retained a right of access and therefore had not ceased to be recognised as a parent of the applicant. Based on this evidence the applicant does not meet r.1.04(1)(b).
[1] The Tribunal accepts that this reference to “r.1.04(1)” is to r.1.04(1)(a) and r.1.04(1)(b) and not to r.1.04(1)(c).
Subregulation 1.04(1)(c) relates to customary adoption arrangements. In this regard, every one of the cumulative requirements of r.1.04(2)(a), r.1.04(2)(b) and r.1.04(2)(c) must be satisfied.
Subregulation 1.04(2)(c)(i) consists of two alternative requirements, the first being that formal adoption was not available under the laws of the jurisdiction (r.1.04(2)(c)(i)(A)), and the second being that formal adoption was not reasonably practicable in the circumstances (r.1.04(2)(c)(i)(B)).
In terms of r.1.04(2)(c)(i)(A), formal adoption is available under the laws of Kiribati, as conceded by the applicant through her representative. Regulation 1.04(2)(c)(i)(A) is not met.
In terms of r.1.04(2)(c)(i)(B), the applicant submitted through her representative in the post-hearing submissions letter of 8 April 2022 that formal adoption was not reasonably practicable. The letter relevantly stated as follows:
Legal or formal adoption can only be pursued through the courts, and it requires consent from both biological parents.
As discussed during the hearing and evidenced by the custody order, the Applicant’s biological father contested to the custody application by the Sponsor and therefore it can be concluded that he would equally not have consented to an adoption application by the Sponsor.
We submit that whilst formal adoption was available in Kiribati at the time, it was not reasonably practicable for the Sponsor to pursue it as consent from both biological parents could not be obtained nor was it reasonably practical at the time, that the guardianship order was sought given the needs of the Applicant were that she needed to be placed into the immediate care of the Sponsor as is recognised by the court order.
[paragraph numbers omitted]
An advice letter dated 30 March 2022 from an i-Kiribati firm of solicitors relevantly stated as follows in relation to formal adoption and the need for consent:
Formal or Legal Adoption is done through an established court only. In the proceeding before the Court the natural parents are required to give their full consent to the adoptive parents that their child will be adopted and that the adoptive parents will take full responsibility to take care of the adopted child.
Once the court allowed the application, the Certificate of Registration of Adoption is issued and the child be recognized in law as one of the real children of the adoptive family. Not only that but in most cases the surname of the child changed, adopting the family name of the adoptive parents.
In a formal adoption therefore, consent is very important. Once Consents are given by both parties the court will consider that that is an agreement by either parties; the natural parents agreed that their child will be adopted and so to go and live with the adoptive parents for the rest of the child’s life and the adoptive parents agreed to take the care of the child and treat the child as one of the real children.
Consent therefore is an important factor in such a sort of proceedings and once it was given, with it comes responsibility, duty and promises of the adoptive parents to bring up the child and treat the child etc.
An issue therefore arises on the information given about whether formal adoption was “reasonably practicable”, which requires the Tribunal to consider the expression itself. “Reasonably practicable” is used elsewhere in migration legislation, most notably in s.198 of the Act which deals with the powers of the Department to remove unlawful non-citizens. For example, in s.198(6), an officer of the Department has an obligation to remove “as soon as reasonably practicable” an unlawful non-citizen if certain other criteria are applicable – being that the non-citizen is a “detainee”, has made a visa application that has been refused or cannot be granted, and has not made another valid application for a substantive visa.
The case of M38/2002 v MIMIA [2003] FCAFC 131 dealt with the expression “reasonably practicable” in the context of the aforementioned s.198(6). In that case, the Court stated as follows when discussing the legislative use of the expression:
The use in legislation of the expression "reasonably practicable" is not novel, and the authorities that discuss its use are numerous. In the authorities and in the Shorter Oxford English Dictionary, the word "practicable" has the meaning "capable of being carried out in action; feasible". Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint. The word "reasonably" in the expression "reasonably practicable" limits or qualifies what would otherwise be an almost absolute obligation. The removal of a non-citizen may be practicable in the sense that it is feasible, but not "reasonably practicable" as required by s198(6) of the Act.[2]
[citations omitted]
[2] [2004] FCAFC 131, [65].
Elsewhere, the Court quoted with approval the following passage from French J (as he then was) in the Federal Court case of WAIS v MIMIA [2002] FCA 1625:
The term 'as soon as reasonably practicable' in s198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part.[3]
[3] Ibid [68].
What the above passage demonstrates, at least to the Tribunal, is that reference must be had to practical difficulties before one is able to make a decision about whether a task is reasonably practicable – whether that task is removing an unlawful non-citizen or adopting an i-Kiribati child. Although the above passage is qualified by the words “inter alia”, nowhere has it been suggested that a decision-maker must have regard to the legal impossibility of being able to undertake a task when making a decision about whether that task was reasonably practicable and the Tribunal does not believe this to be the case.
In the present matter, and based on submissions from the applicant’s representative and on the advice letter from the i-Kiribati firm that the court will only consider that there is agreement to an adoption when consents are given, consent from the applicant’s biological father was legally required. Having considered and accepted the submission from the applicant’s representative that such consent was absent, formal adoption was therefore not legally allowed. In these circumstances, and having had regard to the judicial authorities on the expression “reasonably practicable”, the Tribunal finds that it is not correct to say that the absence of consent meant that formal adoption was not reasonably practicable.
The Tribunal is not satisfied that formal adoption was not reasonably practicable, and r.1.04(2)(c)(i)(B) is not met.
As the claimed adoption does not meet either of the alternative requirements under r.1.04(2)(c)(i), it is not a customary adoption under r.1.04(2) and r.1.04(1)(c).
Because none of the alternative requirements under r.1.04 is met, the visa applicant was not an adopted child of the sponsor under that regulation at the time of application. She therefore does not meet s.5CA(1)(b) of the definition of “child”.
Neither of the defined examples of “child” under s.5CA is met, and there is no evidence in front of the Tribunal to show that the visa applicant otherwise meets s.5CA.
Accordingly, cl.802.212(1)(a) is not met at the time of application, and cl.802.212(1)(b), cl.802.212(1A) and cl.802.212(2) do not apply. Because the applicant does not meet cl.802.212 is not met at the time of application, it cannot continue to be met at the time of decision: cl.802.221(1)(a).
For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of Subclass 837.
MINISTERIAL INTERVENTION
The Tribunal accepts that the applicant is in the full-time care of her grandmother and step-grandfather, Mr Anthony Roman, and has been so since October 2018. Evidence in front of the delegate and now in front of the Tribunal demonstrates that the applicant has integrated into the community, having completed three years of schooling in Wangaratta and undertaken sporting activities with the local soccer club. Other evidence shows that the applicant’s biological mother has moved from Hamilton Island to Goulburn where she has secured employment and is able to visit her daughter more frequently.
There is no question in the mind of the Tribunal based on the evidence that the applicant’s interests lie in her continuing to live in Australia with her grandmother and Mr Roman and close to her biological mother rather than in Kiribati. In this regard, it accepts that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the sponsor and Mr Roman, who are both Australian citizens. Moreover, it accepts that there are compassionate circumstances regarding the applicant’s young age that if not recognised would result in serious, ongoing and irreversible harm to her. The Tribunal also accepts that the applicant’s circumstances are ones that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration and specifically Article 3(1) thereof relating to the best interests of the applicant. Lastly, it accepts that the applicant has integrated well into the Australian community and has spent five out of her eight years in Australia (firstly with her biological mother and then with the sponsor and Mr Roman).
However, a question that does arise for the Tribunal is whether it is inappropriate for the Minister to consider a request for ministerial intervention based on the potential of there being a migration pathway through a partner visa. Specifically, it notes that the Minister’s guidelines on ministerial powers lists the following case as inappropriate:
the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 …
In this regard, the Tribunal heard evidence from the sponsor and Mr Roman that the applicant’s mother is in a long-term relationship with an Australian citizen and is being sponsored by him for an onshore partner visa.
At hearing, the applicant’s representative advanced an oral submission that her client would not be able to be included in any onshore partner application because of the effect of the schedule 1 criteria vis-à-vis the statutory bar under s.48. This submission was elaborated on in the post-hearing letter of 8 April 2022 as follows:
Item 1124(3A) [sic] of the Schedule 1 of the Regulations, provides that a person is taken to have met the requirements of the paragraph if the applicant:
(i)is a person to whom section 48 of the Act applies; and
(ii)claims to be a dependent child of a person who has met the requirements of paragraph (3)(e)
…
Paragraph (3)(e) defines the circumstances in which an applicant to whom section 48 of the Act applies, can make a valid application.
Since the main applicant, the Applicant’s biological mother, is not a person to whom s.48 of the Act applies, the Applicant is not taken to meet 1123(3A).
The Departmental policy provides further clarification in relation to the above matter:
5.7 Dependent children of applicants subject to s48 of the Act
Under Schedule 1 item1124B(3A), if a person who is subject to s48 has met the requirements of item 1124B(3)(e), their dependent children are also taken to have met those requirements.
This allows dependent children to make a valid BS-801 application at the same time and place as their parent in situations where:
• both the parent and children are subject to s48 of the Act
• the parent has met all of the criteria in item 1124B(3)(e) and
• the dependent children have met the criteria in item 1124B(3A).
As per the above policy, both parent and child must be subject to s48, in order to allow a dependent child to be included in the parent’s application for a partner visa.
[emphasis and ellipsis in original, paragraph numbers omitted]

The Tribunal accepts this submission and accepts that the applicant is not able to be included in the onshore partner visa application of her biological mother as a secondary applicant. In these circumstances, it does not consider that it would be inappropriate for her request for ministerial intervention to be considered. Furthermore, there are no other circumstances to suggest that it would otherwise be inappropriate to consider her request.
Having considered the evidence in front of it and made the above findings, the Tribunal will refer the application for ministerial intervention with a recommendation that the applicant’s situation be considered.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
David Crawshay
Member

ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.03     Definitions
…
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)       is dependent on that person; or
(ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
…
step-child, in relation to a parent, means:
(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or
(b)a person who is not the child of the parent but:
(i)       who is the child of the parent’s former spouse or former de facto partner; and
(ii)      who has not turned 18; and
(iii)     in relation to whom the parent has:
(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
1.05A Dependent
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
…
Schedule 2, Part 802
…
802.213(1)    If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:
(a)was under 18 when the adoption took place; and
(b)meets the requirements of subclause (2), (3), (4) or (5).
(2)The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.
(3)The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.
(4)The applicant meets the requirements of this subclause if:
(a)the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and
(b)before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent's spouse or de facto partner as suitable adoptive parents, for the applicant.
(5)The applicant meets the requirements of this subclause if:
(a)the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and
(b)either:
(i)when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or
(ii)the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; 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, or the adoptive parent and the adoptive parent's spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.