Venkatesh (Migration)

Venkatesh (Migration) [2021] AATA 5497 (12 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Roopa Venkatesh
CASE NUMBER:  1809402
HOME AFFAIRS REFERENCE(S):          CLF2016/41094
MEMBER:Rachel Westaway
DATE:12 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 (Carer) visa:
·cl.836.212 of Schedule 2 to the Regulations;
·Public Interest Criterion 4020(1) for the purposes of cl.836.223 of Schedule 2 to the Regulations

Statement made on 12 September 2021 at 9:20pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian ‘relative’ – adopted by great aunt – first cousins once removed – false and misleading information – sisters – characterised as niece-aunt relationship – Indian adoption law – customary adoption – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04; Schedule 2, cls 836.212, 836.223; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
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 March 2018 to refuse to grant the review applicant (Ms Roopa Venkatesh) (the applicant) an Other Family (Residence) (Class BU) (Subclass 836) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the 836 carer visa on 4 July 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations).
In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221 and cl.836.223 of the Regulations.
The delegate refused to grant the 836 carer visa on 19 March 2018 as they were not satisfied the applicant is the sponsor’s niece thus not meeting the relative requirements in subclauses 836.221 and 836.223 of the Regulations.
Furthermore, the delegate also determined the applicant provided false and misleading information to purposely misrepresent her niece-aunty relationship with the sponsor to gain a favourable migration outcome thus not meeting the Public Interest Criteria (PIC) 4020 requirements in cl.836.223 of the Regulations.
The applicant provided the Tribunal with a copy of the delegate’s primary decision record dated 19 March 2018.
On 15 June 2021 the Tribunal invited the applicant under s.359(2) of the Act to provide written information addressing the PIC 4020 requirements. A response was received within the prescribed timeframe.
The applicant appeared in-person before the Tribunal on 1 July 2021 to give evidence and present arguments.
The Tribunal also received oral evidence from the applicant’s sponsor (Ms Vimala Janardhana Rao) and the sponsor’s husband (Dr Tamarapakam Janardhana Roa).
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.
The applicant was represented in relation to the review by her registered migration agent, Ms Karyn Anderson of Clothier Anderson Immigration Lawyers.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets clauses 836.221 and 836.223 of the Regulations.
The Tribunal has chosen to make a decision on the time of application criteria in cl 836.212. The delegate made an adverse finding on cl 836.221 based on the applicant not meeting the definition of “relative” in reg 1.03. The term “Australian relative” is referenced directly in the criterion in cl 836.212, which the Tribunal notes the delegate did not appear to have made a clear finding about (the delegate found, at p3, that “at the time of making this application, the applicant made claims that appeared to meet the requirements of clause 836.212.”). Since cl 836.212 states that “the applicant claims to be the carer of an Australian relative.”, the questions the delegate needed to answer are:
(a) the applicant claims to be a carer and
(b) there is an Australian relative that the applicant claims to care for
The definition of “relative” clearly needs to be considered in this context, and the Department did not do so. Given that the Department’s time of decision finding in cl 836.221 was focused not on the “applicant is a carer” part of the criterion but on the “a person referred to in cl 836.212” (i.e. “Australian relative”) part of the criterion, the Tribunal will limit its review, for the purposes of this matter, to cl 836.212.
The applicant (Ms Roopa Venkatesh) is a 47 year old female Indian citizen who first arrived in Australia on a visitor (FA 600) visa on 13 May 2015. The applicant is currently onshore on a Bridging Visa B which was granted on 23 October 2019 with an attached 8101 (no work) visa condition.
The applicant’s sponsor (Ms Vimala Janardhana Rao) is an 80 year old female who has been an Australian citizen since 2004.
The applicant applied for the 836 carer visa on 4 July 2016 without the assistance of a migration agent or migration lawyer. The applicant declared on various documentation submitted to the Department that she was the sponsor’s niece.
The following material was provided to the Department in support of the visa application:
Identity documents
·Photographs of applicant
·Copy of applicant’s Indian passport valid from 23 April 2015 to 22 April 2025
·Copy of sponsor’s Australian passport valid from 5 December 2013 to 5 December 2023
·Sponsor’s Certificate of Australian Citizenship obtained on 25 August 2004
·Copy of applicant’s Indian Birth Certificate issued on 21 December 2012
·Copy of applicant’s Indian Post Office Identity Card
Bupa documents
·Carer Visa Assessment Certificate (CVAC) and Carer Visa Report from Bupa Medical Visa Services dated 19 October 2016 confirming sponsor meets carer requirements with a 30 rating thus ‘partially dependent’
·Various email correspondence passing between the sponsor and Bupa Medical Visa Services about a CVAC
·Email from Bupa Medical Visa Services to sponsor dated 1 July 2016 requesting further supporting material
Medical documents
·Medical letter from Dr Velmurugendran dated 14 January 2016 about sponsor’s and sponsor’s husband’s health issues thus both require assistance with routine daily activities
·Medical letter from Dr Paul Burns dated 10 May 2016 and X-ray about sponsor’s dislocated hip issues
·Medical letter from Dr Richard de Steiger dated 4 August 2016 about sponsor’s dislocated hip issues thus requires applicant’s ongoing assistance
·Medical letter from Dr Suba Nadesapillai dated 8 August 2016 about sponsor’s health issues thus requires ongoing carer support
·Medical letter from Dr Jitendra Vohra dated 8 August 2016 about sponsor’s health issues thus requires a full-time carer as her husband is undergoing chemotherapy
·Medical letter from Dr Kochar of Nicholson Street Specialist Centre dated 24 August 2016 about sponsor’s health issues
Statutory Declarations
·Sponsor’s Affidavit affirmed in India on 20 January 2009 about never having a birth certificate
·Sponsor’s Statutory Declaration dated 2 July 2016 declaring applicant is her niece and full-time carer in Melbourne
·Statutory Declaration of sponsor’s husband (Dr Janardhana Rao) dated 6 October 2016 advising of their respective health issues thus is unable to care for his wife
·Applicant’s undated Statutory Declarations certified on 2 January 2017 clarifying her marital status, family composition and previous employment history
·Sponsor’s undated Statutory Declaration certified on 2 January 2017 confirming her date of birth and that birth registration was non mandatory in India in 1940
·Undated Statutory Declaration of sponsor’s husband (Dr Janardhana Rao) certified on 2 January 2017 confirming his health issues thus unable to care for himself nor his wife
·Undated Statutory Declaration of sponsor’s son (Mr Harish Rao) certified on 2 January 2017 confirming his work, travel and family commitments thus unable to care for his elderly parents
·Letter from sponsor’s son (Mr Ranjit Rao) dated 3 January 2017 confirming he is a full-time Urological Surgeon in Melbourne thus is unable to care for his mother
·Undated Statutory Declaration of sponsor’s husband (Dr Janardhana Rao) advising of applicant and sponsor’s travel to India in September 2017 for herbal treatment
·Applicant’s undated letter to Department explaining the support she is providing to her sponsor and sponsor’s husband whilst they are all in India
Character References
·Undated Character Certificate from Dr Sanjay Chandrasekhar confirming applicant is of good character, cared for his grandparents and now his aunty (the sponsor)
·Undated letter from A Bhuvaneswari and copy of her American passport confirming sponsor is her sister in law and that the applicant is sponsor’s niece
·Letter from Dr V Seshiah dated 4 July 2016 and copy of his Indian passport confirming he has known the applicant for 15 years and applicant resides with sponsor’s family
·Letter from Mr Bryan Dorman of Regis Aged Care dated 17 January 2017 advising of no aged care service to meet the specific carer needs of an elderly person from a South Indian background
Other documents
·Undated ‘Venugopal Family Tree’ detailing sponsor’s family composition
·Applicant’s Department notification letter and Visitor (FA 600) visa grant notice dated 1 May 2016
·Applicant’s Department notification letter and Bridging Visa B grant notice dated 14 October 2016
·Email dated 20 September 2016 about applicant’s flight itinerary from Melbourne to Malaysia in October
·Evidence of applicant’s flight itinerary details from Malaysia to Melbourne in March 2017 and then back to Malaysia in September 2017
On 1 November 2017 the Department invited the applicant to comment on information before the Department which indicated her claims about being her sponsor’s niece may be false or misleading. The applicant responded to the invitation accordingly explaining the history of her family composition.
After considering all the circumstances including the applicant’s response, the delegate refused the 836 carer visa application as they were not satisfied the applicant met subclauses 836.221 and 836.223 of the Regulations.
On 5 April 2018 the applicant lodged a merits review application resulting in this Tribunal case number 1809402.
The following material was provided to the Tribunal in support of the applicant’s review:
·copy of primary notification letter and decision record from the Department of Home Affairs dated 19 March 2018
·Representative’s submissions dated 29 June 2021 attaching various documentation previously lodged to the Department (Departmental forms, Statutory Declarations, identity and citizenship documents, medical letters etc)
·Applicant’s statement dated 29 June 2021
·Sponsor’s statement dated 29 June 2021
·Statement of sponsor’s husband dated 29 June 2021
·Biological family tree between visa applicant and sponsor
The representative’s submissions dated 29 June 2021 explained the details of the passing of the applicant’s biological parents and circumstances of how the applicant commenced caring for the sponsor and her husband. The representative’s submissions also explained the family compositions and family terms used as a sign of respect for older generations in the Indian culture.
The representative submits the applicant’s family and friends view her relationship with the sponsor as niece and aunty thus the sponsor has legal standing under Indian Law which should be recognised in Australia.
APPLICANT CLAIMS TO BE CARER OF AN AUSTRALIAN RELATIVE
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s 80 year old great aunt (Ms Vimala Janardhana Rao) who is an Australia citizen.
For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
The applicant provided the Tribunal with a copy of her sponsor’s Certificate of Australian Citizenship. The sponsor was granted Australian citizenship on 25 August 2004.
In her application Roopa described her relationship with Vimala as one of Aunt and niece. However, the delegate did not accept the relationship and determined it to be fasle and misleading in its description.
The visa applicant confirmed she came to Australia in 2015. She said she was born in Chennai in 1973. She is not married and has no children. She completed Year 3 studies and was not interested in school.
She explained that her father was an alcoholic and beat her and took her and left her with Vimala’s family whom she now claims to be the carer of. She explained that she didn’t know the family prior to that but she knew she was related. She explained she was in the care of her father as her mother passed away when she was 5 years of age. Her parents had a love marriage which was not accepted so there was little family support.
She stated that she recalls being left at Vimala’s home under the care of her Great Aunt and thinking it was for 4 months. She said that she called her biological Great Aunt ‘mum’ and slept with her. It was a wealthy family with maids and drivers. She explained that she was always treated as family and those who worked in the house lived in a separate room and came on a daily basis. They also ate separately. She confirmed she was never asked to do housework. She explained that she would attend the temple and go to the shops with her aunt. She said that it was very much a family arrangement and she took care of her but did not get paid. She explained that as time went on her father never returned and she remained in the care of her aunt and became informally her daughter. She said that her aunt said she will look after her whilst she is alive and Vimala will look after her after that. She stated that this has been the case. She said that when her aunt passed away she remained in the house.
The Tribunal discussed the concept of customary adoption with the applicant and she confirmed that she was treated similarly as the other children although she stated that Vimala was older than her and had married and was not living at home.
She explained that her aunt tried to arrange for her to be educated but she was not interested in academic pursuits.
She explained that when her aunt died she continued to live in the house and Vimala looked after her. She explained that when Vimala had a hip fracture in India and then one in Australia she came to Australia for 3 months to help her because she was living in India by herself and offered to assist her as Vimala’s children were busy with their own lives and families and she had the ability to.
She confirmed that she assists her taking a shower and putting on her sari and cooking because Vimala only eats Indian and since the surgery she is unable to stand for more than ½. Hour. She also assists Mr Rao as he is a diabetic and she helps him take his medication and he is forgetful and he had a fall and she cooks for him too.
She said they have two children who have very busy careers. She explained that one is a kidney specialist and the other is a business person.
She said they would not be able to manage by themselves and she said that Mr Rao has prostate cancer and sugar diabetes.
The Tribunal took oral evidence from Vamala. She provided the Tribunal with a consistent explanation about how the view applicant came to live with her parents and her feeling that it was her duty as an older sister to look after her initially and now she is looking after them.
She explained that she is 33 years older than the visa applicant who has no remaining family. She explained that her father passed away in 2001 and then her mother passed away in 2011. She remained in the family home until 2015. Helpers would remain there such as a cook and maid and watch man and sometimes a gardener.
She explained that her husband and her owned the house and it did not belong to her parents. She said that her brother created debts and they had to sell the original family home so the home Rooper lived in actually belonged to her and her husband. It was bought by her husband in 1973 and she confirmed that she has documents to provide to support this.
She said that there was therefore no inheritance when her parents died but she stated that Roopa received a gold chain and bangles which she obtained as her inheritance.
The applicant’s representative explained that they have relied heavily on Indian adoption laws because they could not access formal adoption laws. She explained that in 1991 when the visa applicant was 14 her mother already had daughters so she couldn’t adopt, and the alternative processes were not available or reasonably accessible.
The Tribunal has therefore turned its mind to whether in fact the visa applicant, Rooper is for the purposes of reg 1.03 the Australian relative of Vamala.
Meaning of ‘Australian relative’
‘Australian relative’ means a relative of the visa applicant who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.[1]
[1] cls 116.211(2), 836.111. The definition of ‘Australian relative’ is also defined in reg 1.03. That definition was added by the Migration Amendment Regulations 2009 (No 13) (Cth) (SLI 2009, No 289) to apply to visa applications made from 9 November 2009. It has the same meaning as contained in cls 116.211(2) and 836.111 but it does not specifically apply to these Subclasses.
‘Relative’ is relevantly defined in reg 1.03 of the Regulations as a ‘close relative;[2] or grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step grandchild, step aunt, step uncle, step niece or step nephew’.
[2] ‘Close relative’ is also defined in reg 1.03 of the Regulations
Roopa in in essence claiming to be an adopted child based on customary adoption in India and consequently through this the sister of Vimala. Her description of Aunt and niece was born of claimed confusion in how the relationship might best be described without formal documentation rather than through deception.
Roopa’s mother passed away when she was five and her biological father passed away when she was 14. She was orphaned and taken in by her Great Aunt.
Public Interest Criteria (PIC) 4020
The first issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.836.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The visa applicant Roopa claimed to be a relative of Vimala in her carer visa applicantion. She stated that she was the niece and Vimala was her aunt. In reviewing the evidence on hand, both oral and written material, the visa applicant was brought up by Sharada and Bandi, the parents of Vimala. She referred to them as mother and father. Decisions regarding her upbringing such as her education and health and long-term welfare were made in accordance with normal guardianship arrangements.
Submissions to the Tribunal argue the biological relationship in western terms would be described as first cousins once removed. This term has no relevance in Indian culture. However whilst the relationship between Roopa and Sharada became one of mother/daughter, there was a significant age difference between Roopa and Vimala and as such whilst it was more akin theoretically to sisters, it was more respectful and akin to that of aunt and niece and consequently it was described as such in the application.
Based on the evidence at hand and the consistent explanation of the family history and the cultural nuances attributed to Indian culture and family relationships, the Tribunal does not accept that the information provided in the carer application was false and/or misleading.
Therefore, the applicant meets PIC 4020(1).
On the basis of the above, the applicant satisfy PIC 4020(1) for the purposes of cl 836.223.
The Tribunal will now turn its mind to the relationship between Roopa and Vimala.
The applicant provided a detailed submission outlining Hindu law and adoption and then customary adoption. The salient points from the submission are detailed below and accepted by the Tribunal.
Adoption under Indian law and applicability in Australia Under s 11 of the Hindu Adoptions Maintenance Act 1956 (India), which governed all adoptions in India, Vimala’s parents were legally barred from formally adopting Roopa:
Other conditions for a valid adoption – In every adoption, the following conditions
must be complied with: – …
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son’s daughter (whether by
legitimate blood relationship or by adoption) living at the time of adoption;
The submission noted that this barrier was somewhat alleviated with the Juvenile Justice Act 2000 (India) whereby ‘the legislature in its wisdom clarified in sub section (6) of Section 41 that the Court may allow a child to be given in adoption to adopt a child of the same sex irrespective of the number of living biological sons or daughters’.
It went on to stated “Further, Indian courts have subsequently ignored the restriction of gender in adoptions contained in the Hindu Adoptions Maintenance Act 1956 (India), including the High Court of Punjab and Haryana in the case of Rajan Mittal: The restriction of numbers/gender should be ignored in the case the adoptive parents are able to satisfy the Courts that they are capable (of) financially and emotionally to take care of the adoptive children. In this case, the High Court of Punjab and Haryana referred to the judgement of the High Court of Bombay in Indian Association for Promotion of Adoption and Child Welfare and Christopher Drury and Shenz Drury, ‘wherein it was held that a couple already adopted one girl child is entitled to adopt another girl child.’ The High Court of Punjab and Haryana also referred to the case of Payal in its judgement, that a Hindu couple governed by the Rajan Mittal[3] and another v Nari Niketan Trust (Regd.) Makodat Rd, Jalandhar, High Court of Punjab and Haryana[4],.1956 Act can adopt a child of the same gender under the provisions of the Act’ and further referred another case.’
[3] Rajan Mittal and another v Nari Niketan Trust (Regd.) Makodat Rd, Jalandhar, High Court of Punjab and Haryana, 30 December 2012, CR No. 6553 of 2010, accessed
[4] 30 December 2012, CR No. 6553 of 2010, accessed >
The ordinary practice in cases of child abandonment in India, as in Roopa’s case, were for ‘such children (to be) automatically included into their family by the next kin, from either side of the family’. The applicant in her submission argued that ‘traditional adoption’ emerged as a personal and family interest as a child welfare mechanism, given the barriers in the Hindu Adoptions Maintenance Act 1956 (India).
The Tribunal accepts that the option for a legal adoption did not exist at the relevant time of Roopa’s childhood in 1987 under the law of the Hindu Adoptions Maintenance Act 1956 (India) and that, instead, a traditional or customary adoption took place, which would now be recognised under Indian law.
The Tribunal has considered and accepted the applicant’s submission that at the relevant time of Roopa’s childhood and adolescence, as well as not being legally available on the facts of this case, adoption in India more generally was not a reasonably practicable option due to the cost and complexity of the legal processes involved. Further, given the abandonment of Roopa by her father and the presumption of his death, it was not a reasonably available option. The relevant judicial precedents cited above as well as the current child welfare mechanisms in India did not exist then as they do now, such that Sharada would have been able to legally adopt Roopa. The Tribunal accepts that formal adoption was not a reasonably available option. The traditional or customary adoption was established by virtue of the two significant events namely Roopa’s abandonment by her father and, secondly, the informal transfer of her care to Sharada and Bandi, whereby Roopa lived in their home and was cared for by them and that if the matter was brought before an Indian court, the traditional adoption would be recognised.
Applicability under Australian law for the purposes of the present application, the Tribunal accepts that under Australian law customary adoptions are accepted for Australian immigration purposes as detailed in reg 1.04:
(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
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.
Following Roopa’s mother, Geetha’s, death and her father, Venkatesh’s abandonment of her, arrangements were made for Roopa to be cared for by her biological great aunt, Sharada, as her own maternal grandmother had passed away. As these were in accordance with the usual practice in Indian culture that she be cared for by her maternal family, the Triubunal finds that reg 1.04(2)(a) is met.
It is accepted that Roopa had no ongoing relationship with her biological father and relied upon Sharada and Bandi for all her emotional, physical and financial needs and referred to them as ‘umma’and ‘appa’ or mother and father, which we submit meets the threshold reg 1.04(2)(b) requirement as she had no other familial relationships which were closer, both her parents having passed away or abandoned her.
The Tribunal has referred to Department’s policy 14.3 Assessing the closeness of the relationship
In assessing whether or not the child-parent relationship between customarily adopted child and adoptive parent is significantly closer than that, say, between the child and their pre-adoption parent/s, officers should take into account to what extent the adoptive parent has declared the child to be "their" child, as evidenced, for example, by information/documentation relating to the below factors:
• Mutuality - does the information presented in the application or at interview
support the claim that both parents and child have a relationship closer than any
other such relationship
• Financial aspects - do the claimed parents provide financial support for the
child's daily needs (insofar as it is practicable in the circumstances)
• Living arrangements - are the family's living arrangements consistent with the
claim that the child has been customarily adopted:
• how long has the child been living with the family
• has the child been cared for by other relatives for a period of time which might
suggest a closer relationship than that with the claimed adoptive parents
• Social aspects - is there any evidence that the claimed parent-child relationship
has been recognised by the extended family, community and/ or local authorities -
for example, family status certificates or family books (if these documents are
officially used and maintained) or hospital, religious or school records. Does the
child know, to the extent it would be reasonable to expect, of other relatives, who
are recognised by other children in the family
• Future plans - do the plans for the future of the family include the claimed
customarily adopted child:
• do the parents' plans indicate an ongoing interested in and responsibility for the
child
• does the child have an understanding of these plans appropriate to their age.
The evidence taken at hearing reinforced the care taken of Roopa and her treatment as an adopted daughter. The Tribunal and the applicant have acknowledged that further legislation and the Indian courts have undone the applicability of this law preventing the adoption of abandoned children in such circumstances, these changes in the law only occurred after Roopa had become an adult and were not available to be utilised when she was a child, pursuant to reg 1.04(2)(c)(i)(A).
The Tribunal accepts that the visa applicant through customary adoption is the sister of Vimala, an Australian relative.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·Public Interest Criterion 4020(1) for the purposes of cl 836.223 of Schedule 2 to the Regulations and cl 836.212 of Schedule 2 to the Regulations;
Rachel Westaway
Senior Member

ATTACHMENT
Migration Regulations 1994
1.15AA Carer
1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…

[2021] AATA 5497

12 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction