Waldron and Secretary, Department of Family and Community Services

[2005] AATA 1111

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] aata 1111

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/7

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And HEATHER WALDRON

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date9 November 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Double Orphan Pension – definitions of “adopted child”, “parent” and “intending adoptive parent” – Immigration Act definitions – Ethiopian adoption not recognised in Australia – whether child is a “double orphan” – decision affirmed

Social Security Act 1991 ss 5, 933
Immigration (Guardianship of Children) Act 1946 s 4

Acts Interpretation Act 1901 s 15AA

REASONS FOR DECISION

9 November 2005 Senior Member L Hastwell          

1.      Mrs Heather Waldron (the respondent) and her husband are in the process of formally adopting an Ethiopian child, Isabelle.

2.      After going through appropriate legal channels they are now recognised as Isabelle’s adoptive parents by Ethiopian law, as the Ethiopian Government requires that this formality be completed before children are removed from Ethiopia for inter-country adoption.  Isabelle came to Australia in December 2003 and has been living in the care of the respondent and her husband since that time.  She has not been yet formally adopted by them under Australian law.  The Ethiopian adoption is not recognized under Australian law.

3.      Under Australian law the respondent and her husband must go through the usual processes to adopt Isabelle in Australia, and the child remains under the guardianship of the Minister for Immigration, and by delegation, the Chief Executive Officer of the Department of Human Services during this transitional period.  She is currently in Australia under an adoption visa (Sub-Class 2).

4.      The respondent has lodged a claim for Double Orphan Pension.  Initially that claim was rejected.  She appealed to the Social Security Appeals Tribunal (the SSAT), and on 22 December 2004 the SSAT set aside the decision under review and determined that the respondent was entitled to Double Orphan pension for Isabelle.

5.      The applicant (the Department) has applied to this Tribunal for review of that decision.

non-contentious issues

6.      It is common ground between the parties that Isabelle is a young person within the meaning of the relevant legislation.  It is agreed that both her natural parents are dead.  There is no dispute that the child is legally adopted by the respondent and her husband according to Ethiopian law, and that this adoption is not recognised under Australian law.  An adoption must be completed in Australia in accordance with Australian law.

7.      It is acknowledged that the process of adoption is underway in Australia, and should be completed at some time in the foreseeable future.

relevant legislation

8. Section 933 of the Social Security Act 1991 (the Act) defines a “double orphan” as follows:

“(1)     A young person is a double orphan if:

(a)       the young person is not a refugee child; and

(b)       each parent of the young person is dead.

Note 1: for young person and parent see section 5.

Note 2: for refugee child see section 995.

Note 3: if the young person does not qualify as a double orphan under this subsection, and the young person is a refugee child, the young person may qualify as a double orphan under section 994.”

9. Section 5(1) of the Act defines an “adopted child” as follows:

“adopted child means a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children.”

10. A “parent” is defined in s 5(1) of the Act as:

“parent means:

(a)(except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G):

(i)in relation to a young person, other than an adopted child—a natural parent of the young person; or

(ii)in relation to an adopted child—an adoptive parent of the young person; or

(b)in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G, in relation to a person (relevant person):

(i)a natural or adoptive parent of the relevant person with whom the relevant person normally lives; or

(ii)if a parent referred to in subparagraph (b)(i) is a member of a couple and normally lives with the other member of the couple—the other member of the couple; or

(iii)any other person (other than the relevant person’s partner) on whom the relevant person is wholly or substantially dependent; or

(iv)if none of the preceding paragraphs applies—the natural or adoptive parent of the relevant person with whom the relevant person last lived.”

11.     The Immigration (Guardianship of Children) Act 1946 (the Immigration Act) needs also to be considered in this case. Under that Act the respondent and her husband are defined as “intending adoptive parents”.   Section 4 of the Immigration Act provides as follows:

“intending adoptive parent, in relation to a person (the "child"), means a person who intends to:

(a)       adopt the child under the laws in force in a declared State or Territory; or

(b) secure the recognition, under the laws in force in a declared State or Territory, of an adoption of the child by the person under the laws of a foreign country;”

issues for the tribunal to consider

12.     In determining whether the respondent is entitled to the Double Orphan Pension, the Tribunal must determine whether Isabelle is a double orphan as defined within the terms of the Act.  The parties agree that Isabelle is not a refugee child.  The central issue in the Tribunal’s view is whether each of her parents is dead, and in particular, whether within the terms of the Act, the respondent and her husband can be classified as parents of the child.

the hearing

13.      The respondent was assisted in representing her case by a friend, Mrs Wiggins.  Ms Powell, who appeared for the Department, did not call any witnesses and relied on the statement of facts and contentions filed by the Department.

14.     The respondent gave evidence.  Her position was that that she was not an adoptive parent within the meaning of the Act.  The Ethiopian adoption is not recognized under Australian law.  She and her husband are now involved in the adoption process in Australia which has been going on for some time and is still not complete.

15.     The respondent was of the view that it was discriminatory against Ethiopian children who come here under inter-country adoption arrangements if the law is interpreted in the way that is suggested by the Department.  She said that in many instances the country of origin of a child does not require formal adoption under local law before a child is sent to Australia.  This created the anomalous situation that many children that came to Australia under an arrangement for an inter-country adoption were eligible for the Double Orphan Pension because their country of origin did not require completion of a local adoption process before the child left the country.  Ethiopian children were discriminated against because Ethiopia did require that formal adoption be completed before the children left the country and yet Australia did not recognise that adoption.

16.     The respondent urged the Tribunal to reject the Department’s argument that she was a parent within the Act, and therefore excluded from eligibility for the Double Orphan Pension during the period that she was awaiting the adoption process to be completed in Australia.

findings of fact

17.     The Tribunal made the following findings of fact:

·Amsal Muche Waldron (now Isabelle) was born in Ethiopia on 3 April 1999 and both her natural parents are deceased.

·Isabelle is not a refugee child.

·The respondent and her husband applied to adopt an Ethiopian child and Isabelle was allocated to them.

·Ethiopian authorities require that a formal adoption be completed in Ethiopia before a child is allowed to leave that country.

·The respondent and her husband were required to go through a formal adoption procedure in Ethiopia before they were allowed to bring Isabelle to Australia.  They did not reside in Ethiopia at any time, and they first met Isabelle when she arrived in Australia.

·Adoption was completed under Ethiopian law and a birth certificate issued in Ethiopia for Isabel on 13 November 2003 recording her parents as being the respondent and her husband.  Annexed to each parents’ name is an asterisk and at the bottom of the certificate is the notation “adoptive parents”.

·Australia does not recognise the Ethiopian adoption.  Isabelle was then allowed into Australia under an adoption visa and pursuant to various international conventions on inter-country adoption.  The respondent and her husband are now going through the formal requirements to adopt her under Australian law.  They are not recognised as her parents in Australia.

·Isabelle arrived in Australia on 14 December 2003 and has been in the care of the respondent and her husband since that time.

·She remains under the guardianship of the Minister for Immigration until such time as an Australian adoption is completed.

·The respondent and her husband have not yet completed the procedure for adoption under Australian law, but are in the process of doing so and will be legally recognised as Isabelle’s parents in the foreseeable future.  This has been a slow process, not due to any fault of their own, but due to the procedures required under Australian law.

application of the law

18.     Inter-country adoption is largely a state or territory matter, and the Commonwealth’s role is limited to immigration matters.  The fact that an adoption has occurred in accordance with the laws of an overseas country does not mean that it is automatically recognised in Australia.

19.     In this instance, Isabelle came into Australia pursuant to an adoption visa (Sub-Class 2) which means that the Ethiopian adoption was not recognised for the purposes of Australian law.  However, the prospective adopters, namely the respondent and her husband, have been approved by the relevant authority to bring Isabelle into Australia and the relevant overseas authority in Ethiopia approved the child’s departure for adoption in the custody of the respondent and her husband. 

20. Section 4 of the Immigration Act, defines the concept of “intending adoptive parent” as a separate category, and in this instance the respondent and her husband fit into the definition of “intending adoptive parents”.

21.     Although Isabelle resides with the respondent and her husband, she remains in the guardianship of the Minister and is not their child for the purposes of Australian law.

22. The Tribunal then turned to consider the provisions of the Act. The Tribunal also had regard to the provisions of s 15AA of the Acts Interpretation Act 1901 (the Acts Interpretation Act) which provides that the Tribunal must have regard to the purpose or object of an Act in interpreting a provision. Section 15AA(1) of the Acts Interpretation Act provides:

“(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

23. The issue for the Tribunal is how s 933(1) of the Act is to be construed.

24.     The Department points to the definition of the words “adopted child” and “parent” in the definition section of the Act to assert that the respondent has no entitlement to a Double Orphan Pension.  They submit that the definition of “adopted child” in the Act includes Isabelle as it refers to “a young person adopted under the law of any place, whether in Australia or not”.  She is acknowledged to be adopted under the law of Ethiopia.

25. The Department argues that the necessary corollary is therefore that Isabelle has adoptive parents, namely the respondent and her husband, and that s 5(1)(a)(ii) of the definition of “parent” in the Act includes the respondent and her husband. If Isabelle is adopted, then in the Department’s submission she must have parents and cannot come within the “double orphan” definition as set out in s 933 of the Act.

26.     This is very neat logic, nevertheless it appears that the respondent and her husband are not considered to be parents under the definition of “parent” in the Act for the purposes of receipt of other benefits under the Act, as they are not considered to be Isabelle’s  parents in Australian law.

27. The Act does not define “adoptive parent” which term is referred to in the definition of “parent” in s 5 of the Act. The Department’s interpretation of the legislation adds words to the definition of parent in that it includes by inference the category of “intending adoptive parents”. For the purpose of other benefit entitlements they would not accept the respondent and her husband satisfy the definition of “parent” as set out in the Act.

28.     Arguably if the Parliamentary intention was to include parents that are not recognised as parents under Australian law, they would have broadened the definition of “parent” to make that clear, just as the definition of “adopted child” has been broadened.

29.     The purpose of the Double Orphan Pension is to ensure that a person caring for a young person who has no parent, who would otherwise be entitled to receive a benefit for that child, should have the same rights as if they were a parent.  In other words, a child should be entitled to the same support from the Social Security system that it would be entitled to if it had a parent or parents alive.  A Double Orphan Pension is designed to ensure that there is not a gap in the law such that an orphan child has no one eligible to claim a payment on their behalf.

30.     The interpretation put by the Department creates an anomaly and an injustice to “intending adoptive parents” in the position of the respondent and her husband in that on the one hand they are said to be parents for the purposes of denying them the additional benefit of a Double Orphan Pension, and yet they are not considered to be adoptive parents or parents for other purposes.  The Tribunal does not accept that was the Parliamentary intention.

31. The critical word for the Tribunal to consider in the context of s 933 of the Act is not the term “adopted child”, but rather the word “parent”. The Tribunal does not accept the Department’s argument that “parent” in s 933(1)(b) of the Act should be cross-referenced to the definition of “adopted child” in s 5(1) of the Act. The fact that a child is adopted does not necessarily mean it has legally recognised parents.

32. The Tribunal is satisfied that for the purposes of Australian law, the respondent and her husband are not within the meaning of the definition of “parent” in the Act. The Tribunal is satisfied that this is the most beneficial interpretation to put on the definition of “parent” in the absence of more explicit words in the definition section to include “intending” or “prospective” adoptive parents. The Immigration Act defines the legal status of the respondent and her husband. They are not yet the parents of this child either under State or Federal Law. The Department argues for an extended definition of the term “parent”.

33. The Tribunal is satisfied that pursuant to s 15AA of the Acts Interpretation Act 1901, the Tribunal must have regard to the underlying purpose of that Act in considering the construction of s 933 of the Act. The underlying purpose of the Act is to provide Social Security support for children living in Australia in the situation of Isabelle during a period when they do not have parents as recognised under our law.

34. The Tribunal is satisfied that for the purposes of s 933(1) of the Act, Isabelle’s natural parents are deceased, and as far as Australian law is concerned, she currently has no other legal parents. The usual definition of parent in non-extended use, includes a natural or adopted parent. To include a person who is not recognised as a parent by our law, is extending the definition beyond the plain words in the Act.

35.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .................J Coulthard ....................................
  Associate

Date of Hearing  26 August 2005
Date of Decision  9 November 2005
Counsel for the Applicant         Ms J Powell

Solicitor for the Applicant          Centrelink Legal Services Branch
Counsel for the Respondent     In person
Solicitor for the Respondent     -