Ula (Migration)

[2022] AATA 1204

Ula (Migration) [2022] AATA 1204 (23 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Kalani Nauvai Ula

REPRESENTATIVE:  Mrs Ann Cassile Elizabeth Woods (MARN: 0428086)

CASE NUMBER:  1907178

HOME AFFAIRS REFERENCE(S):          CLF2018/48739

MEMBER:Moira Brophy

DATE:23 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802.213 of Schedule 2 to the Regulations.

Statement made on 23 March 2022 at 3:33pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adoptive parent approved as suitable by Australian ‘competent authority’ before adoption took place – child adopted by uncle and aunt – orders by Supreme Court – procedure for adoption in NSW requires report by authorised person – report by approved assessor predating adoption provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 802.212(1), 802.213(1)(a), (b), (4)
Adoption Act 2000 (NSW), ss 91(1), (2), (2A), 222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 21 March 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 May 2018. 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).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.213(4). Clause 802.213(4) is met where the adoptive parent was approved by a competent Australian central authority prior to the adoption taking place.

4. The delegate refused to grant the visa on the basis that cl 802.213(4) was not met because the delegate was not satisfied the adoptive parent was approved as a suitable parent for the child by an Australian ‘competent authority’ before the adoption took place.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and his representatives were given a fair opportunity to give evidence and present arguments.

6. The applicant, given his age at time of hearing, was represented by his adopted parent Ms Cindy Anne Ula (the sponsor). Ms Ula appeared before the Tribunal by way of video on 22 March 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

9. The applicant Kalani Nauvai Ula was born in Australia on [Date]. His biological parents are Suli Ula and Leesia Ula. They are citizens of Tonga. The biological father of the applicant is the brother of Mr Tevita Ula. The applicant’s mother was in Australia on a temporary visa at the time of the applicant’s birth.

10. The sponsor Ms Cindy Ula was born in Australia. Her husband Mr Tevita Ula was born in Tonga. They married in 1993 and Mr Ula migrated to Australia on a Partner visa. They have raised three children together. The eldest Tevita (David) was born in 1996. He is the son of Mr Ula’s sister. Their eldest adopted son is Zane Ula who was born in Tonga in 2003. He was adopted by Ms and Mr Ula in Tonga in 2003. He is a full biological brother of the applicant Kalani.

11. On 2 February 2018 orders were made in the Supreme Court of New South Wales for the adoption of Kalani Nauvai Ula in favour of the adoptive parents Cindy Ula and Tevita Ula jointly.

12. A Birth Certificate was issued by NSW Registry of Births, Deaths and Marriages on 13 March 2018. On that certificate the parents of Kalani Nauvai Ula are recorded as Cindy Anne Ula and Tevita Ula. Zane is listed as a previous child of the relationship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the adoptive parent was approved as a suitable parent for the child by an Australian ‘competent authority’ before the adoption took place.

    Adoption criteria

14. If the Australian citizen, permanent visa holder or eligible New Zealand citizen of whom the applicant must be a dependent child under cl 802.212(1) is an adoptive parent of the applicant, the applicant must have been under 18 when the adoption took place and must meet one of a number of alternative requirements relating to the nature and circumstances of the adoption and the status of the adoptive parent at the time of application: cl 802.213, extracted in the attachment to this decision.

15. A copy of the applicant’s NSW Birth Certificate has been provided. The Tribunal is satisfied that the applicant was born in Australia on [Date]. A copy of the Order (Adoption) made by the Supreme Court of New South Wales on 2 February 2018 has been provided. The Tribunal notes the adoption order names the sponsor and her husband Mr Tevita Ula as the adoptive parents. The sponsor was an Australian citizen on 2 February 2018, her husband was an Australian permanent resident. The applicant was aged six years. The applicant therefore meets cl 802.213(1)(a).

16. To meet cl 802.213(1)(b) and cl 802.213 the applicant must also meet the requirements of subclause 802.213(2), (3), (4) or (5).

17. Subclause 802.213(2) requires the adoption to have been in accordance with the Hague Adoption Convention and for an adoption compliance certificate to have been issued. This type of adoption occurs when a dual national has adopted a child from a country that is a signatory to the Hague Adoption Convention with the involvement from their other country of nationality (also being a signatory to the Hague Adoption Convention). The Tribunal did not have evidence before it to support a finding the applicant was able to meet this requirement.

18. Subclause 802.213(3) covers cases where a child was adopted by a person who became an Australian citizen, permanent resident or eligible New Zealand citizen only after the adoption. As the applicant’s adoptive parents were an Australian citizen and Australian permanent resident at the time the applicant was adopted, the applicant does not meet this requirement.

19. Subclause 802.213(4) applies where the adoptive parent was an Australian citizen, holder of a permanent visa or eligible New Zealand citizen at the time the adoption took place. This subclause requires a competent authority in Australia to approve an adoptive parent as a suitable adoptive parent for the applicant prior to the adoption. A competent authority for this subclause is defined under reg 1.03.

20. In this case the adoptive parents were an Australian citizen and an Australian permanent resident at the time of the adoption and the applicant was adopted in Australia. Section 222 of the Adoption Act 2000 (the Adoption Act) provides that proceedings for the making of adoption orders and other orders under the Act are to be heard and determined by the Supreme Court. Section 91(1) of the Adoption Act provides that a Court cannot make an order for the adoption of a child under 18 unless a report in writing concerning the adoption has been provided. Section 91(2) provides the report is only to be accepted if it has been prepared by the Secretary or an authorised person. Section 91(2A) provides that an ‘authorised person’ means inter alia an ‘approved assessor.’

21. The Tribunal has been provided with a report by Joanne Wyles (B. Soc.St; MAASW) titled Intra Family Adoption Assessment Report dated 15 December 2017. It was noted the report was prepared at the bequest of Shae Mitchell of Hanson’s Lawyers Wollongong. The report was based on interviews with the applicant and the adoptive parents. The author of the report stated she was an approved assessor as accredited by the Department of Family and Community Services. A List of NSW Contracted Adoption Assessors and Registered Counsellors lists the author of the report Ms Wyles as an accredited assessor.

22. The Tribunal finds evidence has been provided to demonstrate the adoptive parents were approved as suitable adoptive parents by the NSW child welfare authority prior to the adoption, and therefore the applicant does meet subclause 802.213(4).

23. Accordingly, cl 802.213 is met.

24. The Tribunal found the sponsor Ms Ula to be an impressive witness. The Tribunal notes the enormous efforts the sponsor and Mr Ula have undertaken in providing care, love and support to their adopted son the applicant: he has resided with them since he was born and is now 10 years old. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

25. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl 802.213 of Schedule 2 to the Regulations.

    Moira Brophy
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    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.