Yanopa (Migration)

[2019] AATA 3469

Yanopa (Migration) [2019] AATA 3469 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher Yanopa

CASE NUMBER:  1717736

HOME AFFAIRS REFERENCE(S):          CLF2016/99152

MEMBER:Angela Cranston

DATE:11 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 11 March 2019 at 9:28am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – no formal or customary adoption – birth mother involved in child raising – birth mother deceased – family residing outside Papua New Guinea – child-parent relationship significantly closer than with any other person – Ministerial Intervention referral – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 802.212; r 1.04

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 and Border Protection on 25 July 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 December 2016. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The parties submitted that the applicant who was born on 8 January 1998, had been living with the sponsor and his wife in Papua New Guinea since 2001, and first came to Australia with them in 2009. They also submitted the following:

   Christopher Yanopa, a young man of 18 years of age, has been under the guardianship of our clients since 2001.  

   During the course of their 19 years missionary work in Papua New Guinea, our clients befriended Christopher’s biological mother, Ms Janet Yanopa. In 2001, when Christopher was 3 years old, Ms Yanopa asked our clients if they could take full time care of Christopher. Our clients happily agreed to.

   When our clients returned to Australia in 2009, they took Christopher with them. Christopher’s residency in Australia was only made possible by a student visa. Christopher is currently in grade 12 at Brisbane Boys College

   When Ms Yanopa passed away in 2013 her relatives, considering that it would be in Christopher’s best interest, asked our clients if they would adopt Christopher. Our clients happily agreed to.

   As it was, in 2014 we instituted proceedings in the National Court in Port Moresby seeking adoption orders for our clients with respect to Christopher. For various reasons, the proceedings was protracted for almost two years before a hearing for adoption was finally fixed for 7 June 2016.

   On 7 June 2016, before the hearing commenced, the presiding Judge enquired into our clients’ status of residency. On learning that they are residents in Australia he indicated that unless they are residents in Papua New Guinea he had no jurisdiction to grant adoption orders. As a result we are now in the process of obtaining instead custody orders for them with respect to Christopher.

   However while we are in the process of obtaining custody orders the issue of Christopher’s residency in Australia has become a worry for our clients. Christopher’s student visa will expire when he completes grades 12 at Brisbane Boys College in November this year. Taking into account all the years that our clients have had guardianship over Christopher - more importantly, the family bond that exists between them and Christopher we cannot stress enough the dilemma that faces them over the prospect that Christopher may be returned to Papua New Guinea and therefore not reside with them anymore.

   In any case, our clients’ adoption of Christopher is wholeheartedly supported by his relatives in particular his maternal uncles and is a norm in traditional practices in Papua New Guinea. Be that as it may we are endeavouring to obtain custody orders before November of this year.

4. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.212.

5. The delegate refused to grant the visa on the basis that cl.802.212(1)(a) was not met for the following reasons:

   Subregulation 1.04(1)(b) requires the applicant to be formally adopted in accordance with the law of another country where the persons recognised by the law as the parents of the adoptee cease to be recognised, and adopters become recognised as the parents of the child. This in effect severs all legal ties between the child and the birth parents.

   The sponsor has advised the applicant has not been adopted. Therefore I am not satisfied that the applicant has been adopted under formal arrangements made in accordance with the law of another country. Therefore the applicant does not meet 1.04(1)(b).

   Subregulation 1.04(1)(c) looks at other arrangements entered into outside Australia that under sub-regulation (2) are taken to be in the nature of adoption. These sub regulations relate to what are commonly known as customary adoption arrangements.

   Sub regulation 1.04(2)(a) requires the arrangement to have been made in accordance with the usual practice or a recognised custom in the culture or cultures of the adoptee and the adopter.

   While the applicant has been residing with the sponsor and his wife since he was three years old, the Home Study on adoptive parents report states the applicant was fostered by the sponsor and his wife. As the foster care arrangement is not considered to have been made in accordance with the usual practice or a recognised custom in the culture or cultures of the adoptee and the adopter. Therefore I am not satisfied the applicant meets regulation 104(2)(a).

   …

   Sub regulation 1.04(2)(c) requires that for a customary adoption/foster care arrangement to be recognised, a formal adoption was not available under the law of the country where the customary adoption took place or formal adoption was not reasonably practicable in the circumstances of the specific case.

   Formal adoption is available in Papua New Guinea. The applicant claims his formal adoption was not completed as adoption is only available to residents of Papua New Guinea, there is no evidence to support this was the only reason the adoption was not completed. It is noted that on the date the hearing was scheduled (7 June 2016) the applicant had turned 18 years of age. Under Australian law, regulation 1.04 only recognises adoptions where the adoptee had been adopted before the adoptee turned 18 years. Therefore even if an adoption had been issued as the applicant had turned 18 at that time the adoption would not be recognised in Australia.

   In addition no explanation has been provided as to why the applicant was not formally adopted (instead of fostered) prior to the family departing Papua New Guinea.

   As formal adoption is available in Papua New Guinea and formal adoption was practicable prior to the applicant turning 18, the applicant does not meet sub- regulation 1.04(2)(c).

6. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from William Deykin Page, who is the applicant's sponsor.  

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

8. The sponsor stated that the applicant had been in his care since he was three, they had not adopted him while his mother was alive but after she passed away in August 2017 the applicant had nothing left in Papua New Guinea and had been living with them since 2009 in Australia. The sponsor also stated that they had begun the adoption process in Papua New Guinea in 2014 while the applicant was still a child but because it took so long, he was already 18 and they were unable to adopt him even though his maternal uncles both wanted that to happen. He stated adoption between family and friends in Papua New Guinea was very common. He also stated the applicant’s home was with them in Australia.

9. The sponsor stated the applicant’s mother was a very close friend, she was like a daughter to them, stayed in their home, cleaned their house and was very happy for them to help look after the applicant.

10. The Tribunal put to the applicant that one of the things the Department said was that the arrangements that had been made were foster care arrangements and did not consider that was the usual practice or recognised custom. He stated it was the custom for families to take care of the children of other families. The Tribunal also put to him that the Department said that formal adoption was available in Papua New Guinea.

11. The applicant stated he started living with the sponsor since he was three. He stated his mother asked them to take care of him as she was struggling. She had befriended them while living at the same house and they took a liking to the applicant and agreed to pay for his education and food and took him under their wing. When asked if they both lived in the same house up until 2009, the sponsor stated she lived in a different house on the same property and the applicant was in the same house as the sponsor and his wife.

12. The sponsor first sought to adopt the applicant after his mother passed away because they wanted to honour her and did not want to sever her connection with the applicant. He also stated her family wanted the sponsor to adopt the applicant but they wanted to leave the door open for the applicant’s mother.

13. The adviser stated that ‘foster care arrangements’ was not the word for the relationship between the applicant and sponsor because the arrangements were very informal. The adviser also stated that the applicant who was living from the age of three with the sponsor had a closer relationship with them than he did to his mother and generally referred to them as mum and dad and had done so for most of his life.

14. The Tribunal put to the applicant that it needed to think about whether there had been arrangements entered into outside Australia that could be taken to be in the nature of adoption, whether those arrangements were made in accordance with the usual practice of Papua New Guinea and whether the relationship between the applicant and the sponsor was significantly closer than any relationship between the applicant and any other person. The Tribunal also put to him that it must also be satisfied that formal adoption arrangements were not available in Papua New Guinea or were not reasonably practicable in the circumstances. The Tribunal put to the parties that it had found evidence that said customary adoptions in Papua New Guinea were common, however whether the applicant’s relationship with the sponsor was significantly closer than his relationship with his mother while she was alive was an issue as was whether it was reasonably practicable for the sponsor to have pursued formal Papua New Guinea adoption laws. The Tribunal also put to the applicant that after he came to Australia any arrangements that the parties sought to make including formal adoption was not relevant because they sought to do that from Australia.

15. The adviser stated the parties would not have met the requirements for adoption under Australian law and because of the way the migration law were written there was no option even though they had a parental/child relationship (although no way to secure adoption). He also stated before the applicant’s mother passed away it was not possible to formally adopt in Papua New Guinea, he did not think that the court would have granted adoption while she was alive and the sponsors had also thought that it was important that the applicant maintain a close relationship with his mother while she lived.

16. The sponsor stated the reason why they could not adopt the applicant was because his mother was alive and they respected the bond between he and his mother and would not want to take her away from him. He stated when his mother passed away, his connection to Papua New Guinea was lost. He also stated the applicant’s mother was very close to them and it was very difficult when she died.

17. The adviser stated it was clear that there was no intention to circumvent migration laws and it was a straightforward legitimate case of a close family relationship however they were caught in a difficult situation because of migration law.

18. The sponsor also stated that they had adopted another son from Papua New Guinea who had grown up with the applicant.

19. Following the hearing, the Tribunal sent country information including the following.

    The Act makes provisions regarding the child to be adopted, the persons in whose favour an adoption order may be made, and the matters that the Court must satisfy itself of before making an adoption order.[1] For example, the Court shall not make an adoption order for a child who has not attained the age of 21 years unless a consent to the adoption has been given by the parents and guardians of a legitimate child not previously adopted, the mother and guardians of an illegitimate child not previously adopted, or the adoptive parents and guardians of a child previously adopted.[2]

    [1] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) sections ‘5. Welfare and interests of child to be paramount’, ‘6. Who may be adopted’, ‘7. Person in whose favour adoption orders may be made’, 8. Age of adopters’ and ‘9. Court to be satisfied of certain matters’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [2] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) section ‘15. Consents of parents and guardians required to adoptions’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325. According to a PNG lawyer, ‘This process requires a Lawyer to sign the consent to adoption to authenticate that the both parties in the adoption proceeding have consented. Before he signs, he would advise and explain the consequences of consenting to the adoption orders prior to the biological parents signing the |consent to adoption.’: ‘The child adoption process in papua new guinea: common jurisdiction’, [Kamongmenan M H], Wealthy Affiliate (WA), posted 23 October 2017, 20190114150455

20. The Tribunal received the following response:

    William and Carolyn Page are not relatives of Christopher Yanopa. Therefore, according to section 16 of the Act, Christopher’s biological mother was not able to consent to adoption by William and Carloyn Page. She could only consent to adoption by any person for example a situation where the relevant state authority finds adoptive parents from a pool of applicants.

    For these reasons, the requirement of regulation 1.04(2)(c)are met, because formal adoption was not available under the law or Papua New Guinea, or at least was not reasonably practicable in the circumstances. 

21. Movement records indicate the applicant first arrived in Australia on 17 December 2002 on a tourist visa and continued to enter and depart on a tourist visa up until 4 December 2009 when he entered on a student visa. 

    Country Information

    The Adoption of Children Act 1968[3] is Papua New Guinea’s (PNG’s) adoption law.

    PNG’s Adoption of Children Act 1968 enabled the making of adoption orders, often referred to as ‘statutory adoption’[4], and the making of the Adoption of Children Regulation 1969 (the Regulations), which regulate statutory adoption.[5] The Adoption of Children (Customary Adoption) Act 1969 gave, in the words of one National Court judge, statutory recognition ‘to the institution of customary adoption that has existed in Papua New Guinea for centuries’.[6] In Revised Laws which came into operation in 1982, the Adoption of Children Act 1968 and Adoption of Children (Customary Adoption) Act 1969 were consolidated into the 1982 Adoption of Children Act (Chapter 275) (the Act), which now sets out adoption laws.[7]

    Statutory adoption can only be effected by an adoption order of PNG’s National Court in respect of a child[8], made in proceedings instituted in that Court in accordance with the Act. The Court cannot make an adoption order unless, at the time the application for the order is filed in the Court, the applicant (or applicants, in the case of joint applicants) are ‘resident or domiciled’ in PNG and the child is ‘present in’ PNG. Where the Court is satisfied that these circumstances applied ‘within 21 days before’ the date on which the application was filed, it may, in the absence of evidence to the contrary, presume that the applicant/s were resident or domiciled in PNG and/or that the child was present in PNG, ‘as the case may be’, at the time of the application’s filing.[9] A legal textbook on PNG family law noted a 1985 case in which the judge held that, as ‘”residence”’ meant ‘”usual dwelling place”’ and implied a degree of permanence, an Australian man living in Australia and only visiting PNG to arrange an adoption did not satisfy the Act’s terms, though his co-applicant wife was domiciled in PNG and the child was present in PNG.[10]

    The Act makes provisions regarding the child to be adopted, the persons in whose favour an adoption order may be made, and the matters that the Court must satisfy itself of before making an adoption order.[11] For example, the Court shall not make an adoption order for a child who has not attained the age of 21 years unless a consent to the adoption has been given by the parents and guardians of a legitimate child not previously adopted, the mother and guardians of an illegitimate child not previously adopted, or the adoptive parents and guardians of a child previously adopted.[12] The Act provides that the Court shall not make an adoption order unless PNG’s Director of Child Welfare has made a written report to it concerning the proposed adoption and it, after considering the report and any other evidence before it, is satisfied of several specified circumstances, including having regard to any wishes ‘expressed by a person or guardian of the child, in an instrument of the consent to the adoption of the child, with respect to the religious upbringing of the child’.[13] The Act provides that an adoption order shall only be made ‘in favour of a husband and wife jointly’, unless the Court is satisfied that exceptional circumstances make it desirable to make an order in favour of one person. The Court shall not make an order in favour of one person if that person is married and is not living apart from their spouse.[14]

    Statutory adoption law at 1994 was described at length in a legal textbook on PNG family law principles.[15] The textbook noted that an adoption order severs, for almost all purposes, the legal ties between the child and its natural parents and makes the child the legitimate offspring of the adopting parents.[16]

    [3] ‘Papua New Guinea Consolidated Legislation. Adoption of Children Act 1968’, Independent State of Papua New Guinea, [1968,] Accessed 1 December 2013, on Pacific Islands Legal Information Institute (PacLII) website, CIS26777.

    [4] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 154 paragraph 6.3. See also ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925)

    [5] ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children Regulation 1969’ (as amended to 25 November 2006), Independent State of Papua New Guinea, Office of Legislative Counsel, PNG, 25 November 2006, on Pacific Islands Legal Information Institute (PacLII) website, 20190114145517

    [6] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 154 paragraph 6.2; cited unreferenced in ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925)

    [7] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 154 paragraph 6.3; cited unreferenced in ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925). It is noted in ‘The Status of Civil Registration and the Collection of Vital Statistics Through Alternative Sources in Papua New Guinea’ (Technical Papers Number 30), International Institute for Vital Registration and Statistics (IIVRS), July 1987, p.14 reference ‘9. Papua New Guinea, Adoption of Children Act, Chapter No. 275, 1982’, on UNSD United Nations Statistical Division website, CIS4BBA4BA90.

    [8] ‘ “child” means a person who has not attained the age of 21 years, or a person who has attained that age and in respect of whom an adoption order is sought or has been made’: Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) section ‘1. Interpretation’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [9] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) sections ‘2. Jurisdiction of National Court’ & ‘3. When jurisdiction may be exercised’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [10] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at pp. 154-169 paragraphs 6.4-6.32. In August 2018 the United States (US) Embassy in Papua New Guinea, Solomon Islands, and Vanuatu’s website stated ‘According to the Papua New Guinea Adoption Act of 1968, prospective adoptive parents who wish to adopt a child from Papua New Guinea must be resident in Papua New Guinea for a period of six months before they can be eligible to adopt.’: ‘Adopting in PNG’, U.S. Embassy in Papua New Guinea, Solomon Islands, and Vanuatu, undated, Accessed 31 August 2018, CIS7B839419264. COISS located nothing in the 1982 Adoption of Children Act (Chapter No. 275) supporting this statement.

    [11] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) sections ‘5. Welfare and interests of child to be paramount’, ‘6. Who may be adopted’, ‘7. Person in whose favour adoption orders may be made’, 8. Age of adopters’ and ‘9. Court to be satisfied of certain matters’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [12] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) section ‘15. Consents of parents and guardians required to adoptions’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325. According to a PNG lawyer, ‘This process requires a Lawyer to sign the consent to adoption to authenticate that the both parties in the adoption proceeding have consented. Before he signs, he would advise and explain the consequences of consenting to the adoption orders prior to the biological parents signing the |consent to adoption.’: ‘The child adoption process in papua new guinea: common jurisdiction’, [Kamongmenan M H], Wealthy Affiliate (WA), posted 23 October 2017, 20190114150455

    [13] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) sections ‘9. Court to be satisfied of certain matters’ and ‘1. Interpretation’ at “the Director”, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325. According to a PNG lawyer, ‘This report is basically a Home Study Report on the environment in which the child is intended to be raised. The report contains an assessment of the intending parent's capacity to raise the child, and often provide an opinion as to whether or not the adoption should be permitted.’: ‘The child adoption process in papua new guinea: common jurisdiction’, [Kamongmenan M H], Wealthy Affiliate (WA), posted 23 October 2017, 20190114150455

    [14] Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) section ‘7. Person in whose favour adoption orders may be made’, in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 201901021325

    [15] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at pp. 154-169 paragraphs 6.4-6.32

    [16] ‘Chapter 6 Adoption of Children’, pp.153-181 paragraphs 6.1-6.45 of ‘Principles of Family Law in Papua New Guinea. Second edition’, Jessep O & Luluaki J, University of Papua New Guinea Press, 1994, CIS27595, at p. 153 paragraph 6.1, citing reference endnote (at p.178) ’1. See A Dickey, Family Law, 2nd ed (Law Book Co, 1990), pp 380-82; and P Bromley and N Lowe, Bromley’s Family Law, 8th ed (London 1992), pp 408-10.’; ‘Child Adoption in the Western Highlands Province of Papua New Guinea’, Peters H R, Kemiki A D & Vince J D, Papua New Guinea Medical Journal, Volume 43, No 1-2, Mar-Jun 2000, 98-104, at p.103, CIS8BEF434389 (or CIS24925), citing reference endnote ‘9 Bromley PM. Family Law, 2nd edition. London: Butterworths, 1981.’ (at p.104)

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Adoption criteria

2. The visa application was made on the basis that the applicant is the dependent child of the sponsor, who is the visa applicant's alleged parent.

3. As noted above, cl.802.212 requires (with limited exception) that the visa applicant be under 25 years and the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen who is the parent of the applicant. Dependent child relevantly means the natural or adopted child, or step-child, of a person.

4. The Tribunal finds the applicant is not the biological child of the sponsor and therefore is not the sponsor's natural child. There is also no documentary evidence that suggests that the applicant is the natural or adopted child of the sponsor's spouse or that the sponsor has any orders in force under the Family Law Act 1975 or the guardianship or custody of the applicant under a Commonwealth, State or Territory law or a law in force in a foreign country. Accordingly, the Tribunal finds the applicant is not the step-child of the sponsor.

5. In relation to the possibility of the applicant being an adopted child of the sponsor, the Tribunal has considered the claims and circumstances of the applicant against the definition of adoption as outlined below:

   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 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.

6. Accordingly, if the application is to succeed, other arrangements entered into before the applicant came to Australia in 2009 that are taken to be in the nature of adoption must be proven.

7. The sponsor has argued that the applicant lived with he and his wife at the compound at Konedobu where there was much interaction amongst them, that his wife assisted the applicant’s mother in looking after the applicant and that in 2001 when the applicant was 3, his mother asked if they could care for the applicant full time and take over from her, functioning as his parents, to which they agreed. They have also stated that since then, they provided for all of his needs including his education and living expenses.

8. However, Papua New Guinea’s legal system recognizes and has statutory provisions for adoption. While there are statutory provisions for adoption in Papua New Guinea, there is no evidence of any formal arrangement under which the sponsor was recognised by law as the applicant's parent in accordance with the law of Papua New Guinea or any other country. Accordingly, the applicant does not meet reg1.04(1)(a) or (b).

9. Paragraph 1.04(1)(c) and subregulation 1.04(2) relates to customary adoption. Paragraph 1.04(2)(c) states that customary adoption arrangements can only be considered if the Tribunal is satisfied that the arrangements were made in accordance with the usual practice or recognised custom in Papua New Guinea and 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 formal adoption of the kind referred to in paragraph 1.04(1)(b) was not available in Papua New Guinea or was not reasonably practicable in the circumstances.

10. The Tribunal accepts that customary adoption arrangements are common practice in Papua New Guinea. Accordingly, the Tribunal is prepared to accept that the applicant has been adopted by the sponsor and his wife according to customary adoption arrangements and that this occurred when the applicant was aged 3.

11. However, the child-parent relationship between the adoptee and the adopter must also be significantly closer than any such relationship between the adoptee and any other person or person, having regard to the nature and duration of the arrangements.

12. The Tribunal accepts that the applicant is close to the sponsor and the sponsor has continued to provide him with significant amounts of financial assistance, love and support. However at hearing, the parties also stated that the applicant’s mother also continued to live at the same property as the applicant and the sponsor and had a say in deciding whether the applicant came to Australia. Given his biological mother's involvement with the applicant, the Tribunal is not satisfied that at the time of application the applicant's relationship with the sponsor was significantly closer than the applicant's relationship with his biological mother. Given this, the Tribunal finds that it is not satisfied that the child-parent relationship between the applicant and sponsor is significantly closer than any such relationship between the applicant and his biological mother, having regard to the nature and duration of the arrangements; and the applicant does not meet paragraph 1.04(2)(b).

13. In addition, since Papua New Guinea permits formal adoption, the Tribunal must also be satisfied that formal adoption was not reasonably practicable in the circumstances. Under Departmental policy, the reasons that may be acceptable as to why formal adoption could not be accessed should comprise circumstances that imply a degree of having been beyond the control of the adoptive parent and/or the child at the time of adoption and could include reasons such as war, natural disaster, extreme geographical isolation. (See PAM3: Div1.2/reg1.04 – Adoption).

14. While the parties have argued that they instituted proceedings seeking adoption in 2014 and on 7 June 2016 the presiding judge indicated that unless the sponsors were residents of Papua New Guinea, he had no jurisdiction to grant adoption orders, the question of whether formal adoption was not reasonably practicable in the circumstances must relate to the arrangements entered into before the applicant came to Australia. The parties have also argued that before the applicant’s mother passed away it was not reasonably practicable to formally adopt the applicant because the court would not have granted adoption while the applicant’s mother was alive, however the sponsor’s evidence at hearing was that adoption between family and friends in Papua New Guinea was common and PNG adoption law does allow for birth parents to consent to adoption. While the parties have suggested that it is a forgone conclusion that the applicant’s mother was not able to consent to the applicant’s adoption by the sponsor because they were not relatives and she could only consent to adoption ‘by any person’ in certain situations, any legal issue (if in fact there is one) would need to be resolved by a Papua New Guinea court after a formal application for adoption was made.  In this case, there were no steps taken by the sponsor to formally adopt the applicant pursuant to Papua New Guinea adoption law before they departed Papua New Guinea in 2009 and the Tribunal does not accept that a legal issue or even a possible negative outcome means that it was not reasonably practicable for the parties to apply for formal adoption. In other words, the Tribunal does not accept that formal adoption was not reasonably practicable in the circumstances.  

15. Tribunal accordingly finds that the requirements for adoption under r.1.04(2)(c) and of the Regulations are not met.

16. There was no adoption of the applicant by the sponsor before the applicant came to Australia, the Tribunal finds that the applicant is not the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. Accordingly, the visa applicant does not meet the requirements of cl.802.212.

17. Accordingly, cl.802.212 is not met.

18. In respect of the other visa subclasses of the visa class sought, there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

    Ministerial Intervention

19. The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual (PAM3) and will refer the matter to the Department.

20. The applicant has lived with the sponsor and his wife since he was 3 years old and arrived with them in Australia in 2009. The applicant’s biological mother (and the only birth parent he knew) died in August 2017 shortly after he turned 18.

21. Evidence before the Tribunal indicates that the applicant has resided his entire life with the sponsor and his wife and he is part of their nuclear family. In such circumstances, there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship for the sponsor and his wife.

22. The Tribunal is satisfied that the circumstances involving this young applicant who has been lawfully in Australia for more than half of his life and who has completed his schooling in Australia, are such that they fall within the Guidelines for the possible consideration by the Minister.

23. Further, the Tribunal is of the view that the visa application presents a strong case with substantial supportive evidence. The Tribunal supports referral to the Minister for his consideration.

    Findings

24. For the reasons above, the applicant does not meet the criteria for a Subclass 802 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

25. In view of the unique and exceptional circumstances relating to the applicant and his sponsor, the Tribunal supports consideration by the Minister under his relevant public interest powers

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Angela Cranston
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Schedule 2, Part 802

    …

    802.213(1)    If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:

    (a)was under 18 when the adoption took place; and

    (b)meets the requirements of subclause (2), (3), (4) or (5).

    (2)The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.

    (3)The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.

    (4)The applicant meets the requirements of this subclause if:

    (a)the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

    (b)before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent's spouse or de facto partner as suitable adoptive parents, for the applicant.

    (5)The applicant meets the requirements of this subclause if:

    (a)the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and

    (b)either:

    (i)when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or

    (ii)the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

    (c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    (d)the adoptive parent has, or the adoptive parent and the adoptive parent's spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.

    
    

Adoption of Children Act 1968 (as amended to Act No. 31 of 1971) and Adoption of Children (Temporary Provisions) Regulations 1969 (as amended to Statutory Instrument No. 13 of 1970), are both in ‘[Papua New Guinea Consolidated Legislation.] Chapter No. 275. Adoption of Children’ [1986 Revised Edition], Independent State of Papua New Guinea, on Pacific Islands Legal Information Institute (PacLII) website, 20190102132532

In addition to ‘The Adoption of Children Act’ (also ‘The Adoption of Children Act (chap. 275)’), reference is made to ‘The Adoption Act’ in ‘Consideration of Reports Submitted by States Parties Under Article 44 of the Convention. Initial reports of States parties due in 2000. Papua New Guinea’ (CRC/C/28/Add.20), United Nations Committee on the Rights of the Child, 21 July 2003, on United Nations Human Rights, Office of the High Commissioner website, p.7 paragraph 2 & p.33 paragraph 124, CISA125423457. An ‘Adoption Act’ is noted in ‘UNICEF Annual Report 2016. Papua New Guinea’, UNICEF [United Nations Children's Fund], undated [document created 12/06/2017], p.26, CIS38A80129138. However COISS located no other information about a PNG ‘Adoption Act’. There is no ‘Adoption Act’ in ‘Papua New Guinea Consolidated Legislation beginning with A ...’, Pacific Islands Legal Information Institute (PacLII) website, 2012 World Bank review stated that PNG’s National Court has exclusive jurisdiction over, among other things, ‘the statutory adoption of children under the Infants Act’: ‘Papua New Guinea - Country Gender Assessment 2011-2012’, The World Bank, undated [document created 13/03/2013], pp.80 & 85 including footnote 322, CIS961F9402107. However there is no mention of adoption in the Infants Act 1956 (there is extensive reference to guardians and guardianship): ‘[Papua New Guinea Consolidated Legislation.] Chapter 278. Infants Act 1956’, Independent State of Papua New Guinea, Office of Legislative Counsel, undated, certified ‘   /  /20  ‘, [document created 23/03/2018,] on Pacific Islands Legal Information Institute (PacLII) website, 20190111140004. The Infants Act was among the Acts repealed by the Lukautim Pikinini Act 2015 (LPA): ‘Papua New Guinea Country Report 2015’, Pacific Islands Law Officers Network [PILON], undated [document created 4 December 2015], p.5, CISEC96CF17343.