Trim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3632

Trim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3632 (8 October 2021)

Division:GENERAL DIVISION

File Number(s):      2021/1093; 2021/1076

Re:Marlo Trim; Lily Trim

APPLICANTS

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:8 October 2021

Place:Brisbane

The decision under review is affirmed.

.............................[sgd]...........................................

Senior Member Theodore Tavoularis

Catchwords

CITIZENSHIP – applications for citizenship by descent – where applicants legally adopted in Cook Islands – where applicants adopted by an Australian citizen – whether Cook Islands is a “Convention Country” or a “prescribed overseas jurisdiction” under the Australian Citizenship Act 2007 (Cth) – decision under review affirmed.

Legislation

Australian Citizenship Act 2007 (Cth)

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)

Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998 (Cth)

Secondary Materials

Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption

REASONS FOR DECISION

Senior Member Theodore Tavoularis

8 October 2021

1. On 17 February 2021, the Respondent Minister refused Lily and Marlo Trim the grant of Australian citizenship pursuant to s 19D of the Australian Citizenship Act 2007 (Cth) (“Act”). Each of Lily and Marlo (collectively, “Applicants”) sought review of the Minister’s decision by way of applications to this Tribunal made on 22 February 2021.[1] This Tribunal’s jurisdiction is activated via s 52(1)(aa) of the Act which facilitates applications for review a refusal decision made pursuant to s 19D of the Act.

   [1]See Exhibit R1, 1[1]; Exhibit R2, 1[1].

2. The hearing of this Application proceeded before me on 24 September 2021. The Applicants were each represented by their adoptive mother, Mrs Sandra Joye Smith.[2] Mrs Smith was assisted by Ms Sandra McDonald who appeared as Ms Smith’s support person. For the sake of convenience and clarity I have reduced the material before the Tribunal to an Exhibit List, a true and correct copy of which is attached to these reasons and marked Annexure A.

   [2]Note: Lily and Marlo take their surname from the name of their adoptive father, who was Sandra’s husband at the time of their adoption: See Exhibit T2, pages 28 and 32.

3. This is not a case about whether Mrs Smith has been, or is a good parent. It is also not a case about whether Marlo and Lily have criminal records, or anything like that. I have read all of the personal references attached to Mrs Smith’s submissions, and it is clear that both Marlo, Lily and their adoptive family are well-regarded members of the community.

4. The problem is that this is a highly unusual case about whether a particular aspect of Australian citizenship law is fulfilled by the Cook Islands. The shot answer is that the Cook Islands does not meet the requirement. The result is that there are few pathways to Australian citizenship available for Marlo and Lily. Those remaining pathways, which do not form any part of the subject of this decision, are lengthy, and expensive.

5. As Mrs Smith recognised in submissions she filed with the Tribunal, there is no room for discretion for this Tribunal to grant citizenship in the unusual circumstances faced by Marlo and Lily.

   RELEVANT FACTS

6. Each of the Respondent’s Statements of Facts, Issues and Contentions (“SFICs”) conveniently set out the relevant “background facts” to each of the Respondent Minister’s decisions under review. As best as I recall the respective positions of the parties at the hearing, there was no dispute about the background facts as they are fulsomely recorded at paragraphs [3]–[10] (inclusive) of each of the Respondent’s SFICs.

7. The Applicants applied for citizenship under s 19C(1) of the Act. It facilitates an application for Australian citizenship where a person has been adopted in accordance with the Hague Convention arrangements, or under a bilateral arrangement. The legislative basis grounding the refusal decision is a failure by the Applicants to meet the requirements of s 19C(2) of the Act. The nub issue for determination by this Tribunal is whether the fundamental elements of s 19C(2) have been met. Section 19C(2) prescribes the necessary elements for satisfaction by an Applicant for citizenship:

   “Pursuant to s 19C(2) of the Act:

   (2)       A person (the applicant) is eligible to become an Australian citizen if:

   (a)the applicant is adopted in a Convention country or a prescribed overseas jurisdiction by:

   (i)a person (the adopter) who is an Australian citizen at time of the adoption; or

   (ii)2 persons jointly, only one of whom (the adopter) is an Australian citizen at the time of the adoption; or

   (iii)2 persons jointly, both of whom (the adopters) are Australian citizens at the time of the adoption; and

   (b)an adoption compliance certificate issued in that country is in force for the adoption; and

   (c)under the Intercountry Adoption regulations or the Bilateral Arrangements regulations, as applicable, the adoption is recognised and effective for the laws of the Commonwealth and each State and Territory; and

   (d)the legal relationship between the applicant and the individuals who were, immediately before the adoption, the applicant’s parents has been terminated; and

   (e)if subparagraph (a)(i) or (ii) applies and the adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption—the adopter satisfies subsection (3); and

   (f)if subparagraph (a)(iii) applies and each adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption—either or both of the adopters satisfy subsection (3); and

   (g)if the applicant is aged 18 or over at the time the applicant made the application—the Minister is satisfied that the applicant is of good character at the time of the Minister’s decision on the application.”

8. There is no suggestion that Mrs Smith, or her ex-husband, are not the adoptive parents of the Applicants. Similarly, there is no suggestion that Mrs Smith and her then-husband were not Australian citizens at the time that they adopted Lily and Marlo. The only issue is whether the other element of s 19C(2)(a) is met.

   PATHWAYS TOWARDS CITIZENSHIP FOR AN ADOPTEE

9. There is a special process in the Act for some people who have been adopted overseas to receive citizenship by conferral. To use this special process, the adoption has to meet one of two requirements. The first pathway is adoption under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“IAR”) which implements the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Hague Convention”). The second pathway is adoption under the Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998 (“BAR”) (Cth). I will consider each in turn.

   Convention Country

10. To use this pathway, the Applicants have to show:

    (i)they were adopted in a “Convention country”; and

    (ii)at least one of their parents was an Australian citizen at the time they were adopted.

11. The satisfaction of these elements is necessary for the adoption (of the person seeking citizenship) to satisfy the IAR. First, the adopted child must have habitually resided in a nominated convention country. Second, the adopting parent must be a person who is habitually resident in Australia[3] or in another convention country.[4] It suffices to say that each of the two elements have valid legislative bases.

    [3]See IAR, reg 16(1).

    [4]See IAR, reg 17(1).

12. The term “Convention Country” is derived from the countries listed in the Hague Convention.[5] As noted by the Respondent, this convention came into force in May 1995 and received its last update in October 2020. There were 104 contracting parties or “Convention countries” to the Hague Convention at the time of its most recent update. This list did not include the Cook Islands. Therefore, the Applicants were not adopted in a convention country.

    [5]See IAR, reg 4.

    Bilateral arrangement regulations

13. Section 19C(1) also facilitates an application for Australian citizenship for a person adopted in accordance with the BAR. This pathway deals with adoptees from certain countries which have not adopted the Hague Convention. The application for citizenship can only be made if the adoptee seeking citizenship can demonstrate they were adopted in a “prescribed overseas jurisdiction”.

14. The regulations to the BAR define “prescribed overseas jurisdiction” with reference to (1) Australia’s bilateral arrangements and (2) the specific countries with who Australia has such bilateral arrangements.[6] This list does not include the Cook Islands. Therefore, the Applicants were not adopted in a prescribed overseas jurisdiction.

    [6]See BAR, reg 3 (definition of ‘prescribed overseas jurisdiction’), sch 1.

    DISPOSITION

15. The essential question is whether the requirements of s 19C(2)(a) of the Act have been met by each of the Applicants. That essential question can be reduced to a series of sub-questions:

    (i)Were the Applicants’ parents Australian citizens at the date of the Applicant’s adoption?[7] This question can be answered in the affirmative.

    (ii)Was each Applicant adopted in a “Convention Country”?[8] This question must be answered in the negative.

    (iii)Was each Applicant adopted in a “prescribed overseas jurisdiction”?[9] This question must also be answered in the negative.

    [7]Pursuant to s 19C(2)(a)(ii) of the Act.

    [8]Pursuant to s 19(2)(a) of the Act.

    [9]Pursuant to s 19(2)(a) of the Act.

16. The criteria in s 19C(2)(a) are cumulative. Thus, while the Applicants may partially satisfy 19C(2)(a) as a result of their parents being Australian citizens at the time of their adoption, the balance of s 19C(2)(a)’s criteria are not met because they were not adopted in either a “Convention country” or a “prescribed overseas jurisdiction”.

17. Additionally, the Applicants have failed to satisfy the criterion in 19C(2)(b) by not being able to produce an Adoption Compliance Certificate. It is not necessary to address the criteria in the balance of s 19C(2) of the Act[10] due to the cumulative expression of s 19C(2)’s componentry.  

    [10]Specifically, ss 19C(2)(c)–(g).

    DECISION

18. I have found the Applicants do not satisfy the criteria in ss 19(2)(a) and (b) of the Act. The decision under review must be affirmed.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

................................[sgd]..................................

Associate

Dated: 8 October 2021

Date(s) of hearing:	24 September 2021
Advocate for the Applicant:	Mrs Sandra Joye Smith
Advocate for the Respondent:	Mr Samuel Cummings, Senior Associate
Solicitors for the Respondent:	Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-Documents for 2021/1076 (T1-T9, paged 1-92)	-	20 April 2021
T2	Section 37 T-Documents for 2021/1093 (T1-T9, paged 1-90)	-	20 April 2021
R1	Respondent’s Statement of Facts, Issues and Contentions for 2021/1076 (paged 1-17, 26 paragraphs) with Annexures: ·     Birth certificate of Lily Trim; ·     Cook Islands Order for Adoption; ·     Cook Islands Welfare Adoption Report regarding Lily Trim.	16 June 2021	16 June 2021
R2	Respondent’s Statement of Facts, Issues and Contentions for 2021/1093 (paged 1-17, 26 paragraphs)	16 June 2021	16 June 2021
A1	Applicant’s Statement in Reply to Respondent’s SFIC (13 pages)	01 July 2021	01 July 2021
A2	Applicant Submissions (tendered in hearing) (pages 1 to 36)	24 September 2021	24 September 2021