Wright (Migration)

[2017] AATA 2801

Wright (Migration) [2017] AATA 2801 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Jennie Wright

VISA APPLICANT:  Miss Precious Katriana Amani

CASE NUMBER:  1723834

DIBP REFERENCE(S):  BCC2017/2407341

MEMBER:Stavros Georgiadis

DATE:29 November 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 29 November 2017 at 5:31pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Customary adoption – Various Children’s Court orders – Parental care and custody – Commitments and life in Kenya

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.04, Schedule 2, cl 600.232

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 22 August 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 July 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.232, which requires evidence that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident who is at least 18 years of age and who is a relative of the applicant.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.232 because the delegate considered the nominated sponsor, Dr Jennifer Wright did not meet the definition of ‘relative’ under r.1.03 of the Regulations. A copy of the delegate's decision record was provided to the Tribunal by the review applicant. For the grant of the visa, a visa applicant is also required to satisfy the requirement that he or she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This is a separate requirement under cl.600.211 that the delegate did not consider. As the visa was refused on the basis of the ‘relative’ criterion under cl.600.232, the Tribunal has considered this requirement on review.

5. The review applicant appeared before the Tribunal on 27 November 2017 to give evidence and present arguments.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl.600.232 is met which requires the Tribunal to be satisfied that the review applicant is a “relative” in relation to the person seeking the visa. The Tribunal notes the visa applicant is 7 years of age (DOB 25 October 2010). For this purpose the r.1.03 definition of “relative” and “close relative” includes a parent (‘close relative’) or a grandparent in relation to the person [r.1.03(b) set out below]:

   Relative

   In accordance with regulation 1.03, relative, in relation to a person, means:
   (a) ...

   (b) in any other case:
   (i) a close relative; or
   (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, stepgrandchild, step-aunt, step-uncle, step-niece or step-nephew.

   Regulation 1.03 defines ‘close relative’ to mean:

   (a) the spouse or de facto partner of the person; or
   (b) a child, parent, brother or sister of the person; or
   (c) a step-child, step-brother or step-sister of the person.

9. The submission is that the visa applicant is the review applicant's granddaughter. There is no evidence before the Tribunal, or suggestion, that the review applicant is the biological maternal grandmother of the visa applicant. The review applicant told the Tribunal that her own daughter, Ms Ruth Yasmine Ernst is the child’s parental guardian (through customary adoption) and that she, as the review applicant, is therefore the grandparent of the visa applicant (through customary adoption).

10. The Tribunal accepts that in the present case, the visa applicant seeks the visa for the purpose of visiting (together with her parent guardian) the review applicant (grandparent) temporarily, for a period of up to six months in Australia.  At the hearing the review applicant explained to the Tribunal that realistically the period of the visit is more likely to be for around 6 weeks. Visiting a relative is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. The visa applicant ordinarily resides in Kenya with her parent guardian, Ms Yasmine Ernst who is the natural daughter of the review applicant, Dr Jennie Wright. 

12. Regulation 1.03 provides that ‘adoption’ has the meaning set out in r.1.04 and the words ‘adopt’ and ‘adopted’ have corresponding meanings.[1] The definition of adoption has particular relevance to establishing whether someone is a ‘relative’ or ‘close relative’ (and therefore parent or grandparent, respectively).

    [1] Acts Interpretation Act 1901 (Cth), s.18A.

    Adoption definition requirements

13. The key requirements contained in r.1.04 are:

    ·the adopter must have assumed a parental role in relation to the adoptee; the role must be assumed before the adoptee attained 18 years of age;

    ·the role must be assumed under certain arrangements, namely:

    a)formal adoption arrangements under Australian (or state/territory) law;

    b)formal adoption arrangements under foreign law, where the adoption results in the legal recognition of the adopter(s) as the parent(s), in place of the previously recognised parents; or

    c)certain other arrangements entered into outside Australia that are ‘in the nature of adoption’ (referred to as ‘customary adoption’).

    ·‘Customary adoption’ is recognised in r.1.04(2) where:

    ·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;

    ·the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons;

    ·formal adoption was not available under the law of the place where the arrangements were made or not reasonably practicable in the circumstances; and

    ·the arrangements have not been contrived to circumvent Australian migration requirements.[2]

    [2] The Tribunal is required to make a positive finding under s.65(1) of the Act that it is satisfied that each of these elements is met. A statement that it is not in a position to make a finding would be applying the wrong test and therefore a jurisdictional error: MIAC v Ryerson [2008] FMCA 1398 (Scarlett FM, 15 October 2008) at [39].

    Background

14. The written submissions of 22 November 2017 provide the background to this matter.

15. Dr Wright and her daughter, Yasmine Ernst, made two previous applications to sponsor Precious for a Visitor visa to Australia. The first was refused on the basis that the delegate was not satisfied that Precious genuinely intended to only visit Australia.

16. The second application was refused on the basis that the sponsor, Dr Wright, did not meet the sponsorship requirement in that Precious had not been formally adopted by Yasmine Ernst.

17. From the information provided, Miss Precious Katriana Amani’s adoption pursuant to Kenyan law has not yet been finalised, as there is currently a moratorium on foreigners adopting Kenyan children.

18. The third (current) application was denied by the delegate on the basis that the sponsor (as the applicant’s purported grandmother) was not a ‘relative’ of the applicant - as defined. The Tribunal notes the delegate made no findings in respect of the submissions presented in respect of ‘customary’ adoption.

19. The submission is that Dr Wright meets the sponsorship requirement of Regulation 600.232 as a ‘relative’ (grandparent) for the purpose of the grant of the visa to the applicant.

    Submissions

20. The review applicant’s oral submissions are consistent with the written submissions (with attachments) of 22 November 2017 which are set out (in part) below:

    _________________________________________________________________________

    ... “It is submitted that:

    ·     The correct application and sponsorship forms are lodged.

    ·     The correct visa application fee is paid.

    Primary Criteria
    We submit that Precious satisfies the primary criteria in relation to a subclass 600 visa (family sponsored stream) as follows:

    Common Criteria

    600.211 We submit that Precious genuinely intends to stay temporarily in Australia for the purposes of visiting her grandmother, Dr Wright.

    Precious and her Australian mother, Ms Ernst, have considerable incentive to return to Kenya at the end of their visit. Ms Ernst is the founder of Zaidi Ya Dreams Children’s Family (“Zaidi”) and manages the day-to-day running of the home. Ms Ernst is a resident of Kenya and has every intention of returning there to continue her work with the children. We direct the decision maker to the attached documents from the Zaidi Ya Dreams website which show the work conducted within the home.

    Ms Ernst and the other staff have raised the 25 children residing in Zaidi from when they were between one day and three years old. She has a genuine care for their physical and emotional well-being. All of the children know of Zaidi as their home, as they have previously been abandoned or abused by their family members. Out of the 25 children, 19 of them have been in care for between two and a half and three years. Precious is the only one of the children that Ms Ernst has applied to adopt.

    Ms Ernst has strong ties to her community in Kenya and significant responsibility regarding the care and wellbeing of the 25 children under her care. She, therefore, has no hesitation in returning to Kenya with Precious to resume care for the children. We direct the decision maker to the letter from Winnie Wanja, a Social Worker who works with Ms Ernst at Zaidi, who confirms all of the above.

    Ms Ernst also has a fiancé in Kenya [Miriu Karuiki] who she intends to marry.  He does not have a visa for Australia, nor is he an Australian citizen. Therefore, the only valid and legal way for them to be together at this time is in Kenya. This relationship tie further supports Ms Ernst’s intention to return to Kenya after her trip to Australia.
    Ms Ernst is a law abiding citizen who lives a hardworking and meaningful life in Kenya. She has built a life in Kenya.

    The adoption process in Kenya has become very problematic for foreigners. The Kenyan government has placed a moratorium on adoption since November 2015. The Kenyan government allows for a process for adoption by foreigners but the process must be conducted using certain adoption agencies. The government has now refused those adoption agencies to facilitate adoptions of Kenyan children by foreigners, which has left Ms Ernst and Precious in a state of limbo. Nevertheless, the circumstances in which Ms Ernst and Precious find themselves meet the requirements of “customary adoption” pursuant to Regulation 1.04. We refer the decision maker to the submissions below at Regulation 600.232 regarding the sponsorship of Precious for this visa category. We direct the decision maker to the letter from Ms Ernst’s Kenyan lawyer regarding Kenya’s foreign adoption processes.

    Dr Wright has travelled to Kenya to visit her daughter, Ms Ernst, and her grand-daughter, Precious, multiple times. Dr Wright has a strong and loving relationship with her daughter and granddaughter.

    On 27 December 2007, an election was held in Kenya, which resulted in widespread violence for the two months post-election. Approximately 1000 people were killed at this time and raids led to the burning of villages, looting of homes and the rape of women. Many Kenyans were afraid that a similar level of violence would be experienced in the election to be held on 8 August 2017 and, in fact, there was violence. Ms Ernst wished to bring Precious to Australia at that time, in the hope of avoiding any potential violence following the election. They intended to return to Kenya after the election. It was presumed that any stability that may have been lost in the August election will be restored by the time of their return. We direct the decision maker to Yasmine Ernst’s statutory declaration and the information provided regarding the election violence in order to demonstrate Ms Ernst’s position.

    The political situation in Kenya has degenerated even further in recent months. As discussed, the potential for post-election violence is of great concern to Ms Ernst and the applicant. Fresh elections were called on 26 October 2017 following the Supreme Court’s annulment of the results of the presidential vote in August 2017. The intervention of the judiciary in the political process has traditionally resulted in heightened social unrest and greater suspicion over the legitimacy of the political process. In response to the re-election, violent protest has erupted. Reports have emerged that pro-government police forces have been responsible for the deaths of two anti-government protesters on 27 October 2017.
    Fresh allegations of a violation of electoral commission law have surfaced on 7 November 2017 after the result of the second presidential vote resulted in Presidential candidate Uhuru Kenyatta winning 97% of the vote. The opposition party alleges that Mr Kenyatta was involved in rigging the second presidential vote.

    These political developments further demonstrate the current danger that both the applicant and her mother face if they are required to remain in Kenya. It is submitted that these current political developments must be considered by the tribunal member during these proceedings.

    In addition, the recent shooting death of Australian teacher, Gabrielle Maina, is of particular concern. Ms Maina was a white woman (as is Ms Ernst) who was shot dead by armed men riding a motorbike while walking near her home in the suburb of Karen on October 19. It was alleged that her estranged husband, Cyrus Bernard Maina Njuguna, was responsible for her death. However, on 1 November 2017, Mr Njuguna was released without charge due to a lack of evidence. This appears to link the murder back to generalised political violence, rather than a domestic violence murder.

    This example of violence further demonstrates the current threat both the applicant and Ms Ernst would be subject to if they were to remain in Kenya at this time. The threat of the heightened political tension as a result of the Presidential elections makes it a particularly dangerous time for both the visa applicant and Ms Ernst to remain in the country, as Ms Ernst is white and, therefore, a target of the violence. Until this week, Ms Ernst and Precious have been in Malaysia, waiting out the violence.

    Ms Ernst believes that the politically motivated violence will be short-lived and isolated to the period surrounding the election. For that reason, they have returned to Kenya. We refer you to the attached statement of Ms Yasmine Ernst.

    Ms Ernst had chosen this time to visit Australia due to the political situation in Kenya. However, irrespective of the situation in Kenya, Ms Ernst would like to visit Australia, her home country, with her daughter. It is important to Ms Ernst that her daughter be acquainted with Australia and to spend time with her extended family in Australia.

    We submit that the visa applicant (and Ms Ernst, on Precious’ behalf) has a genuine motivation for wanting to return to Kenya following for the six month period stipulated in this application. While the immediate threat to the safety of Ms Ernst and Precious are clear, the established link that both the visa applicant and her mother have with their community in Kenya is sufficiently supported. As discussed above, Ms Ernst has clear motivation to return. This application is not a de facto application for an adoption visa or Australian citizenship for Precious.
    600.212 We submit that Ms Ernst and Precious have adequate means to support themselves while in Australia for the requested six month period of her stay. The period of six months has been requested to cover any post-election developments in Kenya, but at this stage Ms Ernst does not envisage staying in Australia for as long as six months. Dr Wright will be a further source of support whilst they are staying in Australia. Again we direct the decision maker to the attached documents from NAB which provide evidence of both Ms Ernst and Dr Wright’s financial positions.

    During their time in Australia, Ms Ernst and Precious will be staying with Dr Wright in her home in Eden Hills, South Australia. We direct the decision maker to the attached recent transaction listing of Dr Wright’s NAB accounts which confirm that she has a balance of approximately $77,000.00, as well as to the Business Registration Certificate showing that Dr Wright is the sole owner of her business, Bayside Family Medical & Musculoskeletal Practice. We submit that these bank account documents demonstrate Dr Wright’s ability to support her daughter and grand-daughter during her stay.

    600.213 All available information indicates that Precious and Ms Ernst satisfy the relevant public interest criteria. Please advise if any further information or documentation is required.
    600.214 All available information indicates that the applicant satisfies the relevant special return criteria.

    600.215 Not applicable. Precious and Ms Ernst are only requesting a maximum period of six months and are not currently in Australia. This longer period is requested in order to give flexibility to their travel arrangements should the political situation in Kenya change whilst they are in Australia.

    Criteria for Sponsored Family stream

    600.231 - We submit that the primary purpose of the applicant’s visit to Australia is to spend time with her grandmother and mother who are both citizens of Australia. We direct the decision maker to the attached statutory declarations of Dr Wright which readily demonstrate the excitement she has in having Precious and Ms Ernst visit and stay with her. We also direct the decision maker to the attached copy of the Court Order showing Ms Ernst’s legal guardianship and custody of Precious, as well as Ms Ernst’s birth certificate which confirms that Dr Wright is her mother.

    600.232 - We submit that subclause (2) applies. Precious is sponsored by her grandmother, Dr Wright, and the grandparent relationship satisfies the definition of a ‘relative’ under Reg. 1.03. Dr Wright is Precious’ grandparent, as she is the mother of Precious’ mother, Ms Ernst. Ms Ernst is the adoptive mother of Precious pursuant to Reg. 1.04(1) (c) (“Customary adoption”). It is noted that a previous application by Precious was refused on the grounds that clause 600.232 was not met.

    We direct the Tribunal member to the decision handed down by the delegate of the Minister in connection with this appeal. The decision maker has failed to include any consideration of Reg. 1.04(1)(c) (“Customary adoption”) in his decision. We submit that the decision maker erred in failing to acknowledge the proponents of Reg. 1.04(1)(c). As such, we encourage the tribunal member to give sufficient consideration to this subclause when reaching a decision. Whilst formal adoption may not be met in the current circumstances, it is submitted that the provisions of Reg. 1.04(1)(c) must be considered and applied.

    It is submitted that the Department decision maker erred in its previous assessment of Reg. 600.232 and that the requirements of Reg. 600.232 are satisfied. Reg. 600.232 is met on the basis that Reg. 1.04(1)(c) is satisfied. ...

    Policy

    The policy and information provided in the procedural advice manual in relation to Regulation 1.04 of the Migration Regulations supports our submission that the relationship between Ms Ernst and Precious constitutes customary adoption.
    The policy in relation to customary adoption is provided in PAM3: Div1.2/Reg1.04 – Adoption. Direction is given in relation to the elements of Regulation 1.04.

    Paragraph 14 provides direction in relation to Re. 1.04(2)(b):

    Closeness of the child - parent relationship - 14.2 Whereabouts of biological parents
    The whereabouts of Precious’ biological parents is not known. She was abandoned as a neonate and has no known relatives. Yasmine was volunteering at the orphanage, Future Hope and Baby Centre, where Precious was left in Nairobi at the time. Yasmine has had legal guardianship of Precious since April 2011 and has continued to live in Nairobi with Precious throughout this period. The identity of the biological parents or any known relatives has not been discovered during this time. Furthermore, Precious was abandoned in a very poor state of health and, if not for Yasmine’s physical intervention and Dr Wright’s financial assistance, Precious may not have lived. We draw particular attention to these circumstances to clarify to the decision maker that Precious’ biological parents or known relatives, if alive, clearly have no intention of being known or making contact with Precious. This has been further substantiated through the Children’s Court of Nairobi custody orders, particularly that of October 2016, which provided that Yasmine has ‘full Parental Responsibility over the minor and does not require leave of the court to travel out of the country with her’. Refer to documents 4, 24, 28, 29, 30, and 31 on the list of documents attached.

    14.3 Assessing the closeness of the relationship

     Mutuality

    We submit that Ms Ernst and Precious have a relationship closer than any other such relationship. Yasmine has acted as fulltime nurturer and performed parental duties for Precious since 2011. The orders of the Children’s Court of Nairobi provide evidence that Ms Ernst has relieved the orphanage of any parental or custodial duties. There is absolutely no equivalent relationship between Precious and any other person. Refer to documents 4, 24, 28, 29, 30, and 31 on the list of documents attached.

     Financial aspects

    Ms Ernst has full parental and custodial responsibility of Precious and, therefore, has provided financial support for Precious’ daily needs for over 6 years. As her grandmother, Dr Wright has also provided substantial financial assistance to Precious, in particular, when she was abandoned in a terrible state of health. Refer to documents 4, 10, 11, 12, 13, 14 and 24 on the list of documents attached.

     Living arrangements

    Precious’ home has been with Ms Ernst in Nairobi since 2011. During this time, she has not been cared for by any other individual in the same capacity. Ms Ernst performs all the parental tasks required to care for a child, from feeding to reading bed time stories. She also is engaged to her fiancé who has been a father figure to Precious. Refer to documents 4, 24, 28, 29, 30, 31 and 35 on the list of documents attached.

    • Social aspects

    Precious been a permanent part of Ms Ernst’s life as her daughter since she was a baby. As a result, Dr Wright has recognised Precious as her granddaughter since the earliest stages of her life and has visited Kenya on 7 occasions to spend time with her daughter and granddaughter. Additionally, Precious and Ms Ernst’s relationship has been recognised by friends and legal authorities in Nairobi. Lastly, there has been overwhelming recognition and support from respected characters within Australia of Dr Wright’s and Ms Ernst’s relationship with Precious. Refer to documents 4, 15, 24, 26, 27, 28, 29, 30 and 31 on the list of documents attached.

     Future plans

    Ms Ernst is the mother of Precious and that will not change. Moreover, once the moratorium on foreign adoption in Kenya ceases, Ms Ernst plans to have the adoption recognised by law so as to make future visits to Precious’ grandmother less difficult. Ms Ernst has every intention of returning to Kenya, as she has built a life and a family there. However, currently, Ms Ernst fears for the safety of her child in the post-election period and had hoped to visit Australia during this time. Previous elections have resulted in violence, which resulted in the deaths of over a 1,000 people, and have proven to be unsafe, in particular to foreigners and their families. Furthermore, due to Precious’s particular ethnicity, she is more likely to be subject to hostility. Refer to documents 4, 24, 25 and 37 attached to this submission. Refer to The Washington Post Article ‘Violence possible in Kenya presidential election, EU warns’, Nation Reporter ‘Cabinet: No More foreign adoptions’ and Report from OHCHR Fact-finding Mission to Kenya.

    Australia’s obligations

    In accordance with policy direction in relation to the adoption of children from outside Australia, we submit that certain obligations would ultimately arise if Ms Ernst was afforded the opportunity to formally adopt the applicant. While these obligations do not apply to the current Visitor visa application, we encourage the Tribunal member to consider their relevance. In accordance with the Department’s policy directions, ‘The Australian Government’s involvement in expatriate adoptions is limited in determining whether or not the child meets immigration requirements in order to enter or remain in Australia’. We submit that Australia’s intercountry adoption obligations do provide some relevance to the current visa application. As such, these obligations have been identified below.

    Australia is obliged to comply with The Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption to which it is a signatory. The Convention insists that member states will ‘recognise that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her state’. In addition to this, it stipulates that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights’.

    While this visa application is not a de facto Adoption visa application, we submit that the Kenyan Children’s Court has recognised that no other suitable parental figure can be provided to the applicant, and allocated full parental custody of Precious Katriana Amani in 2011 to Ms Ernst. It cannot be disputed that Ms Ernst has the best interests of the child in mind and as her number one priority. Ms Ernst has dedicated a substantial amount of her adult life to working with and protecting disadvantaged children.

    While Kenya is not a signatory to The Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, we invite the Tribunal’s consideration of the compliance directions within the Hague Convention. Here, the requisite guidelines stipulate that ‘Australia only facilitates overseas adoptions if the principles and standards of the Hague Convention can be met, regardless of whether or not the partner country has signed the convention’. We submit that the principles and standards demonstrated by Kenya in this instance would sufficiently apply in relation to the applicant and, as such, Australia does hold a positive obligation to comply with the provisions of the convention. In keeping with this overall policy, it is in Precious’ best interests to be granted a sponsored Visitor visa in this instance.

    Customary adoptions and parental responsibility (custody) rights

    Paragraph 9 of PAM3: Div1.2/reg1.04 - Adoption provides the following in relation to custody rights in customary adoptions:

    “It is extremely rare for a customary adoption to sever the legal ties between the child and their pre-adoption parents, the pre-adoption parent will almost always retain parental responsibility (custody) rights in respect of a customarily adopted child who is aged under 18 years of age. In some countries, however, courts will award guardianship to the adoptive parents.

    It is particularly important, therefore, that officers satisfy themselves that there are no unresolved parental responsibility issues as required under the Public Interest Criteria 4015 and 4017. The lack of reliable documentation will impact on how to assess this criterion. Officers should consequently focus on the part (b) provision of PIC 4015 and 4017, that is:

    (b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa;”

    In this case, the Children’s Court of Nairobi has awarded Ms Ernst full parental responsibility and sole custody, as well as the ability to travel overseas with Precious without leave. This is evidenced by the documentation provided. There are no unresolved parental responsibility issues. Precious’ circumstances, therefore, fall fully within the definition of, and the policy in PAM3 regarding customary adoption.
    600.233 Not applicable. Dr Wright is a relative (grandmother) of Precious.
    600.234 We submit that this criterion (“the sponsorship has been approved by the Minister and is still in force”) should be satisfied in this case.
    600.235 It is our instruction that Dr Wright is willing and able to lodge a security bond as requested.

    Summary

    It is submitted that Precious Amani meets the criteria for the grant of a Subclass 600 visa and, in particular, it is submitted that the requirements for criterion 600.232 are satisfied.”

    _________________________________________________________________________

    Consideration of Regulation 1.04 (1)(c)

1. The Tribunal has considered the requirements under Regulation 1.04 (1)(c) which provide that a person is taken to have been adopted if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption. The Tribunal accepts the oral evidence, statutory declarations and other documents provided such as the Orders of the Children’s Court of Nairobi, that Ms Ernst assumed a parental role in relation to Precious from the time the child was a neonate. The evidence from Dr Wright is that the child’s umbilical cord was still attached when she was found abandoned allowing an estimate to be made of her date of birth - of 25 October 2010. The Tribunal accepts that Precious was under 18 years of age at the material time.

2. Regulation 1.04(2) provides that 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 any 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.

3. The submission is that the arrangements entered into by Ms Ernst for the care of Precious are in the nature of adoption according to the above definition. Ms Ernst began caring for Precious as an infant in 2011.  As noted, Precious was abandoned by her biological parents and the evidence is that no-one else to date has come forward to claim her as a blood relative.  Dr Wright’s oral evidence is that Precious is of ‘mixed tribe’ and therefore, is less likely to be claimed by Kenyan nationals as there is a preference to adopt from one’s own tribe.

4. The submission is that since 2014, there has been a moratorium in Kenya on foreign adoption announced as a policy of President, Uhuru Kenyatta.  The Tribunal notes the delegate made reference to this in the decision under review.  The evidence before the Tribunal is that this moratorium is still in place, noting the President was successfully re-elected in a recent ballot. Dr Wright explained to the Tribunal that this policy had been introduced in an apparent attempt to combat child trafficking, but with mixed results. Relevantly, the moratorium has meant that Ms Ernst has been unable to conclude a formal adoption processes for Precious which she had already commenced before the moratorium was announced.  Evidence of a ban in the adoption of Kenyan children by foreigners was provided by reference to a news article, titled ‘Cabinet: No More Foreign Adoptions’, dated 27 November 2014 [National Media Group] as well as by reference to the Children’s Act of Kenya 2001. Changes to Section 158(2)(d) of the Children’s Act of Kenya 2001 [with regard to ‘a sole foreign female applicant ‘] have had the effect of an imposed a ban on foreign adoptions which remains current.  The Tribunal accepts that as a consequence of these restrictions and limitations, formal adoption of the kind referred to in paragraph 1(b) of Regulation 1.04 has not been available to Ms Ernst under Kenyan law.

5. The Tribunal finds that arrangements have been made, in accordance with the usual practice and the law of Kenya, for Ms Ernst to effectively adopt Precious. The Tribunal has carefully considered the documents provided evidencing Ms Ernst’s legal custody of Precious. In particular, the Tribunal places substantial weight on the orders of the Children’s Court of Nairobi (the Children’s Court) which according to the review applicant, despite the absence of formal adoption, has used the full extent of its judicial powers to make and recognise Ms Ernst as the de facto parent of Precious. The Tribunal accepts from the various Children’s Court orders listed below that Ms Ernst has been granted legal guardianship and custody of Precious since 2011. The Tribunal has considered the custody documents, dated April 2011, July 2012, and October 2016, and updated on 28 September 2017. The Tribunal considers that the orders made by the Children’s Court satisfy r.1.04(2)(a) in that they are arrangements made ‘in accordance with the usual practice or recognised custom’ in Kenya in the absence of any available formal adoption pathways: [refer to Documents 4, 24, 28, 29, 30, and 31 attached to the written submissions of 22 November 2017]. In particular, the Tribunal notes the words used by the Children’s Court in respect of ‘sole’ custody to Ms Ernst and ‘exercise full parental responsibility’ in respect of Precious without leave required by the Children’s Court should Ms Ernst wish to remove Precious from the Court’s jurisdiction (i.e. travel outside of Kenya).

6. The Regulations define custody at r.1.03 as: a) the right to have the daily care and control of the child; b) the right to and responsibility to make decisions concerning the daily care and control of the child. The Tribunal accepts form the oral evidence provided, photographs of the child in Ms Ernst’s care and the statutory declarations before it, that Ms Ernst has been providing parental care and has had custody of Precious for more than 6 years. The Tribunal accepts, as indeed the Children’s Court ordered, that she has performed the role of parent fulltime and has provided to her daughter physical, emotional and financial support throughout that time. The Tribunal notes that Ms Ernst has been assisted by her mother, Dr Wright who has also made several trips to Kenya from Australia in that period and has continued to provide ongoing support to Precious, even by distance, at other times. The Tribunal has before it photographs depicting Dr Wright’s visits to Kenya to visit her daughter and granddaughter, Ms Ernst and Precious. [refer to Documents 4, 15 and 24 attached to the written submissions of 22 November 2017] consistent with the Department’s Movement details.

7. The evidence before the Tribunal is that more recently, over the past 18 months, Precious has also started to develop a connection with Ms Ernst’s fiancée as that relationship has developed. The Tribunal accepts that Precious has a close relationship with her mother, Ms Ernst, which is closer than her relationship with any other person. The Tribunal accepts that Precious has been in Ms Ernst’s full-time care from a very young age and views Ms Ernst as her mother who has been granted sole custody.  Under the definition of ‘close relative’ in Regulation 1.03 this includes Ms Ernst as ‘parent’ despite being her guardian (to use the delegate’s wording). It follows from the evidence of Ms Ernst’s birth certificate, naming Dr Wright as her mother, that Dr Wright is the grandparent of Precious through customary adoption, and the Tribunal so finds.

8. In coming to the finding of customary adoption, the Tribunal has placed weight on the orders made by the Children’s Court in October 2016 in regards to Ms Ernst’s custody of Precious to contextualise the special nature and circumstances of that relationship. The order states:

   ‘The Court granted the Applicant guardianship and sole custody of the child. That order supersedes the order of 11 April 2011 which ordered the minor not to be removed from the jurisdiction of the court without leave of court. As it stands, the Applicant has full Parental Responsibility over the minor and does not require leave of the court to travel out of the country with her’.

9. The Tribunal is persuaded by the submissions that the order of 17 October 2016, reaffirmed in the order of 28 September 2017, supports the fact that, for all practical purposes, Ms Ernst is the adoptive mother of Precious and is recognised as Precious’ sole parent, having been awarded the rights of a parent, by the Kenyan legal system. The Tribunal is satisfied that accordingly, Dr Wright is the adoptive grandmother of Precious and recognises that she shares a bond with Precious, as grandparent. She therefore, meets the definition of ‘relative’ (grandparent) set out in the definition under r.1.03 (b)(ii) in relation to the visa applicant.

10. Finally, the Tribunal accepts that with regard to the requirement under r.1.04(2)(c)(ii), the circumstances of Ms Ernst and Precious’ relationship have not been contrived to circumvent Australia’s migration requirements. As described earlier Precious has been in Ms Ernst’s care since she was abandoned in 2011 and Ms Ernst has been her sole parent for over the past six years, having undergone considerable expense with the support of her mother, Dr Wright, to secure this status as supported by the statutory declarations and Children’s Court order documents discussed earlier. The Tribunal accepts the evidence that Ms Ernst has built a life in Kenya, working to provide care for up to 25 children in the Zaidi Ya Dreams Children’s Family home. The Tribunal considers that because of her commitments and life in Kenya, she is strongly motivated to return there at the end of her proposed temporary visit to Australia with Precious, planned to be of approximately 6 weeks duration.

    Concluding comments

11. In summary, for the reasons above, the Tribunal accepts that the nature of the arrangements and the relationship between Ms Ernst and Precious satisfies the description of ‘customary adoption’ under r.1.04(2) and that the requirements of r.1.04 are satisfied. Accordingly, Dr Wright, as Ms Ernst’s mother, satisfies the requisite definition of ‘relative’ (grandparent) of Precious on the basis that Ms Ernst is the child’s parent.

12. For the above reasons the Tribunal is satisfied that the visa applicant is sponsored by a settled Australian permanent resident, who is at least 18, and a ‘relative’ of the visa applicant, as defined. Therefore, the Tribunal is satisfied that the visa applicant meets the requirements of cl.600.232.

13. The Tribunal has not sought to obtain oral evidence from the visa applicant given her very young age and has not assessed the visa applicant against the other criteria for the visa noting the delegate’s decision was in respect of only the cl.600.232 criteria considered by the Tribunal.

    DECISION

14. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.232 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member