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AT (Dependent Child) [2012] NZIPT 200482 (10 April 2012)

Last Updated: 16 September 2012

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND

[2012] NZIPT 200482

AT AUCKLAND

Appellant: AT (Dependent Child) Before: J Donald (Member)

Counsel for the Appellant: P Rana

_{Date of Decision: 10 April 2012}

_DECISION

INTRODUCTION

[1] The appellant is a citizen of Fiji, aged 16 years. No-one else is included in her residence application under the Family (Dependent Child) category of Government residence policy.

[2] This is an appeal against the decision of Immigration New Zealand declining the application because it was not satisfied that the appellant’s Fijian adoption order was legally valid. The Tribunal finds that Immigration New Zealand was not correct to decline the application because it failed to advise the appellant that she could satisfy policy by means of a ruling from a New Zealand court that her Fijian adoption had the same effect as a New Zealand adoption order.

BACKGROUND

[3] The appellant made her application for residence on 16 November 2010. She was sponsored by her adoptive mother, a New Zealand citizen since

10 May 2010. In support of her application, she provided an adoption order made under the Adoption of Infants Act (Fiji) on 26 March 2010.

[4] By letter dated 26 January 2011, Immigration New Zealand advised the appellant that it appeared that her adoption order did not comply with section 15(1) of the Adoption of Infants Act (Fiji) and should not have been made. Section 15(1) required that, before a child could be adopted, he or she must have been in the continuous care and possession of the adoptive parent(s) for at least three consecutive months immediately preceding the date of the order. Immigration New Zealand records showed that the adoptive mother was in Fiji for a period of only two weeks prior to the adoption order being made.

[5] The appellant’s counsel responded by letter dated 10 February 2011 submitting that the Fijian Magistrates Court was satisfied that the Adoption of Infants Act was complied with and the Registrar General had marked the appellant’s details in the register of birth as “adopted”. Therefore, the adoption was legally valid according to the law of Fiji. Until such time as the court’s decision was challenged or overturned it stood and was valid in other jurisdictions. Counsel enclosed an affidavit filed in support of the adoption application, the notice of motion, the notice of appointment of solicitors, the appellant’s entry in the register of births, a letter of support from a welfare officer at the Fijian Ministry of Social Welfare, Women and Poverty, and a letter of support from an advisory councillor at the Fijian Ministry of Multi-Ethnic Affairs.

Immigration New Zealand Decision

[6] By letter dated 23 February 2011, Immigration New Zealand declined the appellant’s application because the adoption order was not legally valid according to the law of Fiji. Therefore the adoption order did not have the same effect as a New Zealand adoption order under section 17 of the Adoption Act 1955 as required by F5.1.b.iii of policy.

GROUNDS OF APPEAL

[7] Section 187(1) of the Immigration Act 2009 (“the Act”) provides:

(1) There is a right of appeal to the Tribunal against a decision concerning a residence class visa in the following circumstances:

(a) an applicant for a residence class visa may appeal against—

(i) a decision of an immigration officer to decline to grant the visa (including in the circumstances described in section

190(2)(b)):

(ii) a decision by the Minister not to grant a residence class visa if classified information has been relied on in making the decision:

(b) a person outside New Zealand who has been granted a resident visa may appeal against a decision to cancel the visa under section 65(1):

(c) a person who has been granted a resident visa may appeal against a decision to refuse to grant the person entry permission (including in the circumstances described in section 190(2)(b)).

[8] Section 187(4) of the Act further provides:

(4) The grounds for an appeal under this section are that—

(a) the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or

(b) the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended.

[9] Under section 409(5) of the Act, the Government residence policy in force when the appellant applied for residence must be treated as residence instructions for the purposes of the Act. Hereafter, the Tribunal will refer to policy as “residence instructions” or “the instructions”.

[10] On 12 April 2011, the appellant lodged this appeal on the ground that the decision of Immigration New Zealand was not correct in terms of the applicable Government residence instructions.

[11] Counsel makes submissions (9 April 2011). No material additional to that found on the Immigration New Zealand file is provided.

ASSESSMENT

[12] The Tribunal has been provided with the Immigration New Zealand file in relation to the appellant’s application and has also considered the submissions and documents provided on appeal. An assessment as to whether the Immigration New Zealand decision to decline the appellant’s application was correct in terms of the applicable Government residence instructions is set out below.

[13] The application was made on 16 November 2010 and the relevant criteria are those in Government residence instructions as at that time.

Family (Dependent Child) Instructions

[14] Dependent children who are adopted after their parent(s) made their own application for residence must satisfy F5.1.b.iii of residence instructions:

F5.1 How do dependent children qualify for residence?

...

b. Principal applicants under dependent child policy must also:

...

iii have been adopted by (see R3) their parent(s) after their parent(s) made their own application for residence, by a New Zealand adoption order made under the Adoption Act 1955, or an overseas adoption order which, under section 17 of the Adoption Act 1955, has the same effect as a New Zealand adoption order.

_...

Effective 30/06/2003

[15] Instructions also provide guidance as to how an immigration officer is to satisfy him or herself that an overseas adoption has the same effect as a New Zealand adoption under section 17 of the Adoption Act 1955. F5.10.25 provides:

F5.10.25 Evidence that overseas adoption has same effect as a New Zealand adoption (see F5.1(b)(iii))

Evidence that an overseas adoption has the same effect as a New Zealand adoption under section 17 of the Adoption Act 1955, includes:

a. a ruling from a New Zealand court; or

b. the assessment of the processing officer, if there are clear precedents for adoptions from the country concerned.

Effective 04/07/2005

Section 17 of the Adoption Act 1955

[16] Section 17 of the Adoption Act 1955 relevantly provides:

“17 Effect of overseas adoption

(1) Where a person has been adopted (whether before or after the commencement of this section) in any place outside New Zealand according to the law of that place, and the adoption is one to which this section applies, then, for the purposes of this Act and all other New Zealand enactments and laws, the adoption shall have the same effect as an adoption order validly made under this Act, and shall have no other effect.

(2) Subsection (1) of this section shall apply to an adoption in any place outside New Zealand, if—

(a) The adoption is legally valid according to the law of that place; and

...

(2A) The production of a document purporting to be the original or a certified copy of an order or record of adoption made by a Court or a judicial or public authority in any place outside New Zealand shall, in the absence of proof to the contrary, be sufficient evidence that the adoption was made and that it is legally valid according to the law of that place.

...”

Adoption of Infants Act (Fiji)

[17] Two provisions of the Adoption of Infants Act are relevant to this appeal. Section 6(4) provides that an adoption order shall not be made in favour of any applicant who is not resident in Fiji or in respect of any infant who is not so resident. Section 15(1), relied on by Immigration New Zealand, provides:

“15(1) An adoption order shall not be made in the case of any infant unless the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding date of the order.”

[18] Social Welfare Officer (SWO) v The Marshall [2008] FJHC 283 (7 March

2008) (“MarshalI”) and In re S (an infant) [1997] FJHC 182 (24 November 1997) (“Re S”), both decisions of the High Court of Fiji, are particularly instructive in understanding the Adoption of Infants Act. Both decisions concerned section 6(4) of the Adoption of Infants Act.

[19] In Marshall, the Court found that section 6(4) of the Adoption of Infants Act was a mandatory statutory requirement (see paragraph [9] of the decision). The Court also noted that the three-month requirement prescribed by section 15(1) of the Act did not fulfil the residency requirements stipulated by section 6(4). Further, in Fiji, the Adoption of Infants Act essentially provides for “domestic” adoptions. Inter-country adoptions are facilitated by bilateral agreements between the countries in question (see paragraphs [18]-[20] of the decision). In Re S, the Court considered an application for the adoption of a child resident in Fiji by her uncle and aunt who were resident in Australia. His Honour observed:

“I was informed by counsel that magistrates in the magistrate’s court in Suva if not elsewhere are regularly making adoption orders in cases whose facts are for practical purposes similar to those in the instant case. If this be so then I consider they are acting wrongly and the practice should cease immediately.”

Immigration New Zealand’s Consideration of the Application

[20] In determining the appellant’s application, Immigration New Zealand was faced, on the one hand, with a Fijian adoption order that was evidence that the adoption had been made and was legally valid in Fiji and, on the other hand, evidence that the mandatory requirements for such an adoption had not been met. In essence, the adoption was an inter-country one, with the child resident in Fiji and the adoptive parent resident in New Zealand and intending that the child join her in New Zealand. But, the adoption order was made pursuant to legislation providing for domestic adoptions.

[21] Determining whether an adoption satisfies section 17 of the Adoption Act

1955 involves complex questions of foreign law. In T v District Court at North

Shore (No 2) [2004] NZFLR 769 at 775-776, Harrison J observed:

“By way of postscript, I wish to record that I do not mean any criticism of the Immigration Service’s previous refusal to grant J a residence or visitor’s permit without the sanction of a court order. The Service which performs a critical administrative and enforcement function, has neither the status nor the resources to undertake the determinative exercise required by section 17 of the Adoption Act. That is a purely judicial function, which requires an independent assessment of the statute when applied to settled facts.”

These observations were repeated and endorsed by Heath J in Cheon v The

Attorney General (HC, Auckland CIV-2007-404-7669, 8 July 2008) at [58]:

“I agree with observations made by Harrison J in Tjiong on the desirability of a curial inquiry into whether the criteria to meet s 17(1) have been established.”

When determining whether section 17(1) applies to an overseas adoption, the High Court can hear witnesses and receive evidence as to the relevant foreign law. Immigration New Zealand is not required to simply take an adoption order at face value. However, nor is it well-placed to determine whether such an order is legally valid in the face of evidence which may constitute “proof to the contrary” as contemplated by section 17(2A) of the Adoption Act 1955.

[22] Once Immigration New Zealand determined that it was not satisfied, based on the evidence provided to it, that the appellant’s adoption had the same effect as a New Zealand adoption order pursuant to section 17 of the Adoption Act 1955, it should have considered what evidence, according to residence instructions, would enable it to be satisfied of this. Residence instructions provide that evidence that an overseas adoption has the same effect as a New Zealand adoption order includes a ruling from a New Zealand court (F5.10.25, effective 4 July 2005). At no stage did Immigration New Zealand refer the appellant to F5.10.25, or suggest

that instructions could be satisfied by means of a ruling from a New Zealand court. Fairness required it to do so.

[23] For this reason, the Tribunal finds that the Immigration New Zealand decision to decline the appellant’s application was not correct in terms of the applicable Government residence instructions.

STATUTORY DETERMINATION

[24] This appeal is determined pursuant to section 188(1)(e) of the Immigration Act 2009. The Tribunal considers the decision to refuse the visa was made on the basis of an incorrect assessment in terms of the applicable Government residence instructions. However, the Tribunal is not satisfied the appellant would, but for that incorrect assessment, have been entitled in terms of those instructions to the immediate grant of a visa.

[25] The Tribunal therefore cancels the decision of Immigration New Zealand. The appellant's application is referred back to the chief executive of the Department of Labour for a correct assessment in terms of the applicable Government residence instructions, in accordance with the directions set out below.

Directions

1. The application is to be reassessed by an immigration officer with no previous association with the application. No further lodgement fee is payable by the appellant.

2. Immigration New Zealand is to advise the appellant that it is not satisfied that her Fijian adoption order has, under section 17 of the Adoption Act 1955, the same effect as a New Zealand adoption order as required by F5.1.b.iii of instructions. It is to invite the appellant to provide satisfactory evidence that it does and refer her to F5.10.25 of instructions.

3. If the appellant undertakes to obtain a ruling from a New Zealand court that her adoption in Fiji has the same effect as a New Zealand adoption under section 17 of the Adoption Act 1955, Immigration

New Zealand shall defer the processing of her residence application for a reasonable period to enable her to do so.

4. If the appellant advises that she does not wish to obtain such a ruling, Immigration New Zealand may determine the application on the evidence before it.

[26] This appeal is successful in these terms.

“J Donald”

J Donald

_Member

Certified to be the Research

Copy released for publication.

J Donald

Member