Tofa Siupolu (Migration)

[2021] AATA 3405

Tofa Siupolu (Migration) [2021] AATA 3405 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Juanita Tafiaina Tofa Siupolu

VISA APPLICANTS:  Mr Asueru Junior Uialatea
Miss Rasela Uialatea

CASE NUMBER:  1814859

DIBP REFERENCES:  OSF2017052516 and OSF2017052525

MEMBER:M. Edgoose

DATE:25 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant’s an Adoption (Subclass 102) visa.

Statement made on 25 August 2021 at 10:41am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – overseas adoption – review applicant residing overseas for more than 12 months – Orders of Adoption – sponsor’s health issues – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 338, 347, 351, 359
Migration Regulations 1994, Schedule 2, cls 102.211, 102.221

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 10 May 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) Subclass 102 visas under s. 65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 2 November 2017 in accordance with item 1108 of Schedule 1 to the Migration Regulations 1994 (the Regulations). At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 102 visa.

3. The criteria for a Subclass 102 (Adoption) visa are set out in Part 102 of Schedule 2 to the Regulations. They comprise primary and secondary time of application criteria; cl 102.211, and time of decision criteria; cl 102.221. The Tribunal notes that at least one person included in the application must meet the primary criteria.

4. On 10 May 2018, the delegate refused to grant the visas on the basis that the visa applicants did not satisfy cl 102.211 of Schedule 2 of the Regulations. The delegate found that the visa applicants did not satisfy cl 102.211(2)(b)(ii) because the review applicant had not resided overseas for more than 12 months at the time of application.

5. On 22 May 2018 the review applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s 338(5) as the visa applicants are sponsored by an Australian citizen. The Tribunal finds that the review applicant has made a valid application for review as sponsor under s 347(2)(b) of the Act.

6. The review applicant appeared before the Tribunal on 25 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.

7. The review applicant was represented in relation to the review by her representative.

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

   RELEVANT LAW

9. 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 visa applicant sought to be assessed against the subclass 102 (Adoption) visa. There is no evidence before the Tribunal to suggest that the visa applicant meets any of the key criteria for the subclass 101 or subclass 117 visas.

10. In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Regulations. The primary time of application criteria in cl. 102.211 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal has given regard to the information on both the Department and Tribunal files.  

12. The visa applicants are siblings, Mr Asueru Junior Uialatea born on 10 August 2000 and Miss Rasela Uialatea born on 12 May 1998 in Samoa. The applications that are the subject of this review were validly lodged at Immigration Suva on 2 November 2017. The visa applicants were sponsored by Mrs Juanita Tafiaina Tofa Siupolu, an Australian citizen and her husband Tumua Uialatea.

13. The application included personal documents relating to the visa applicants and the review applicant, including a copy of the review applicant’s passport and various other material. Also included in their applications were Orders of Adoption issued by The District Court of Samoa relating to the adoption of both visa applicants, taking place on 5 December 2014 by the review applicant and Mr Tumua Uialatea. A statutory declaration was made by the review applicant on 6 October 2017, outlining the financial support she provided the visa applicants prior to and after the adoption.

14. On 10 May 2018 the delegate decided to refuse to grant the visa to the applicants. The delegate found that the visa applicants did not satisfy cl 102.211(2)(b)(ii) because the sponsor had not resided overseas for more than 12 months at the time of application.

15. The review applicant sought review of the delegate’s decision on 22 May 2018. The review applicant provided with her application a copy of the primary decision and notification from the Department of Home Affairs, an undated statement and a copy of an email sent from Immigration SUVA to the review applicant on 21 October 2015.

16. In the review applicant’s undated statement, she explained that in 2015 she made inquiries with the Australian Immigration in Melbourne to have the visa applicants permanently reside in Australia. Upon this advice, the review applicant subsequently lodged Applications for Citizenship by Adoption on 12 August 2015 in Apia, Samoa on behalf of the visa applicants. The review applicant was then notified by Immigration Suva on 21 October 2015 that both visa applicants were not eligible for this form of citizenship as they were not adopted under the Hague Convention. The applications were subsequently withdrawn. The review applicant further explains that due to her health and children it had been “very difficult for me and my husband to leave the country to visit our children in Samoa,” explaining that the family’s main contact with the visa applicants was through video calls. She outlines that she has been the main provider of the visa applicants who are both “financially dependent on her for their basic needs of food shelter clothing and especially with school fees, school uniforms, excursions, school books etc.,” of which has been ongoing before and after the formal adoption. The review applicant then explained how the application process has been “stressful and emotional”, expressing her hope for the visa applicants “to reside permanently in Australia so they can further and better their education and have a brighter future in life and to grow and bond with their siblings here in Australia.”

17. The Tribunal has given regard to the emails sent to the Tribunal by the review applicant between 23 August 2018 and 29 January 2020. However, given that the emails were sent after the visa application was made on 2 November 2017 and after the visa application was refused on 10 May 2018 the Tribunal has given these email no weight. The reason for the Tribunal giving the emails no weight is because the review applicant and her husband did not satisfy cl 102.211(2)(b)(ii) because the sponsor (review applicant) had not resided overseas for more than 12 months at the time of application.

18. The Member has considered all the material before the Tribunal carefully against the relevant legislation as outlined above.

    Primary Criteria – Time of Application cl 102.211

    Visa Applicants Adopted Overseas by an Australian citizen Residing Overseas           cl 102.211(2)(b)

19. Clause 102.211 requires that the visa applicants were adopted overseas by a person who was, at the time of adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.

20. In the present case, Mrs Juanita Tafiaina Tofa Siupolu, the review applicant, became an Australian citizen on 25 September 2000. The review applicant’s husband, Mr Tumua Uialatea, became an Australian citizen on 6 May 2014. The review applicant and her husband adopted the visa applicants on 5 December 2014, both being Australian citizens. Therefore, cl 102.211(2)(b)(i) has been met.

21. Clause cl 102.211(2)(b)(ii) required the review applicant to have been residing overseas for more than 12 months at the time of the application.

22. The review applicant confirmed to the Tribunal at the start of the hearing that she and her husband had not was residing overseas for more than 12 months at the time of the application.

23. The Tribunal then adopted the procedure in section 359AA of the Act and put to the review applicant that it had obtained a copy of her and her husband’s Movement Records. The Tribunal explained to the review applicant that the Movement Records are a record of her and her husband’s international movements to and from Australia.  The Tribunal further explained that, according to the review applicant’s Movement Records she had not spent any time outside of Australia in the 12 months preceding the application being made on 2 November 2017. The review applicant’s Movement Records stated that preceding the application being made she had last departed Australia on 18 October 2014 and had arrived back in Australia on 2 November 2014. Post the visa application being made the Tribunal notes the review applicant has departed and return to Australia on three occasions.

24. The Tribunal informed the review applicant that her husband’s, Mr Tumua Uialatea, Movement Records also show that the he had not been residing overseas for more than 12 months at the time of the application being made on 2 November 2017. His Movement Record indicated that preceding the application being made he had also last departed Australia on 18 October 2014 and had arrived back in Australia on 2 November 2014, the same as the review applicant. Post the visa application being made the Tribunal notes the review applicant’s husband has departed and return to Australia on three occasions.  

25. The Tribunal explained to the review applicant why this information was relevant to the review. It explained to the review applicant the consequences of the Tribunal relying on the information. The Tribunal confirmed with the review applicant that she understood the information and how the information was relevant to the review process, and the Tribunal advised the review applicant that she could comment on or respond, or seek additional time to comment on or respond. The review applicant did not request additional time be granted to her, and she chose to respond at the hearing.

26. The review applicant said that the information as presented to her was correct. The review applicant explained to the Tribunal that at the time of the visa application being lodged she was not aware of the requirements.

27. The Tribunal has given regard to the two supporting letters that were submitted to the Tribunal via email on 19 August 2021 from the visa applicant’s biological mother and a friend of the review applicants. Although these two letters are in support of the visa application the Tribunal gives them no weight given that the review applicant did not meet the requirements of cl 102.211(2)(b)(ii).

28. As the review applicant and her husband has not spent 12 months outside of Australia in the 12 months preceding this application, the applicant does not meet cl 102.211(2)(b)(ii).

    Has the Primary Criteria been met?

29. The Tribunal finds that cl 102.211 has not been met as the review applicant has not resided overseas 12 months preceding the application being made on 2 November 2017 in accordance with cl 102.211(2)(b)(ii).

    Consideration of Other Subclasses Within Visa Class

30. An application made for a Subclass 102 (Adoption) visa must also be considered against the criteria for all subclasses with this visa class. The delegate therefore also considered the applications against the 101 (Child) and 117 (Orphan Relative) visas as well.

    Subclass 117 (Orphan Relative)

31. The delegate noted that the visa applicants’ adoptive parents are alive, whereabouts are known, and they are not permanently incapacitated. There is no evidence before the Tribunal to suggest that the applicants meet any of the key criteria for the subclass 117 visas.

32. Therefore. the legislative requirements for Orphan Relative visas have not been met.

    Subclass 101 (Child)

33. The delegate noted that the sponsor was an Australian citizen at the time the visa applicants were legally adopted. There is no evidence before the Tribunal to suggest that the applicants meet any of the key criteria for the subclass 101 visas.

34. Therefore, the legislative requirements for Child visas have not been met.

    Ministerial Intervention Request

35. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The review applicant admitted at hearing that she and her husband had not been residing overseas for more than 12 months at the time of the visa application and therefore did not meet a time of application criteria.    

36. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

37. The Tribunal affirms the decision not to grant the visa applicant’s an Adoption (Subclass 102) visa.

    M. Edgoose
    Member