12-year-old child risks deportation over adoption issue

Allysha was informally adopted from The Philippines when she was born. Now, at 12 years of age, she risks deportation when her student visa expires next month.

Andrew had just ‘adopted’ a baby girl with his wife, Marijun, when he discovered the informal agreement between the couple and the child's biological parents meant she'd be ineligible for Australian citizenship.

“It was only when I went down to the Australian Embassy in Manila, and they had a sandwich board with a checklist, that I saw you had to have a DNA test to get [citizenship],” Andrew told The Feed.

“I thought ‘Okay, that's a bit of a worry. It's not gonna work’. Up until then, I had no idea there would be an issue at all,” he added.

After receiving erroneous legal advice in The Philippines, Andrew and Marijun had organised to have their own names listed on the baby’s birth certificate and apply for a child visa.

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A letter sent to the Immigration Minister by the couple’s lawyer in 2013 claimed local authorities did not require any evidence for Andrew and Marijun to be put on Allysha’s birth certificate at the time.

However, to obtain Australian citizenship, a DNA test was required to prove Allysha was related to an Australian citizen.

This newfound realisation placed Marijun, Andrew and their newly ‘adopted’ child in a complicated position.

Before Allysha’s ‘adoption’, Andrew and his wife had approached a Brisbane adoption agency in their quest for another child, but the then 45-year-old claims he was turned away for being too old.

The pair then turned to IVF. After two unsuccessful attempts, the couple was asked by Marijun’s sister if they wanted to adopt Allysha, who was the child of a friend in The Philippines.

The couple felt ‘adopting’ Allysha would be their only chance to have another child.

The arrangement also suited Allysha’s biological parents, who could not financially provide for the child, according to their signed statutory declaration, seen by The Feed.

With three children and a combined wage of less than $3 a day, the Filipino couple had decided to give Allysha away.

No money was exchanged for Allysha’s adoption. However, Andrew and Marijun paid for the woman’s prenatal care and other birth costs, according to the letter sent by their lawyer.

In 2008, Andrew and Marijun travelled to The Philippines before the birth of the baby girl. But when they realised they were ineligible for a child visa, panic set in.

“The problem was I didn’t have a plan. The only plan was to not give the child back. It just wouldn’t have been right,” Andrew said.

“I lived in Papua New Guinea for 20 years. I just thought it was easy to adopt,” he added.

The couple headed to Papua New Guinea before returning to Australia in 2010 where Andrew had citizenship and Marijun had permanent residency (she now has citizenship).

Hit by the sinking realisation that they were out of options for Allysha to remain in Australia, Andrew said the couple applied for a tourist visa for the child.

They kept renewing this visa every three months until they were pulled up by immigration.

At just seven years old, Allysha was on the brink of being deported when The Minister of Immigration intervened in 2015 to grant her a student visa.

Now 12 years old, Allysha’s student visa is set to expire in less than a month. If she is unable to get another visa, she will be required to leave Australia.

“There's a lot of anguish, anxiety, stress, tension, all those things,” Andrew said.

“You can see her whole world just becomes a spinning vortex. Where am I going, what’s going to happen to mum and dad? It just means that she doesn't sleep as well and she's sort of anxious, doesn't have the confidence of other kids,” he added.

Solicitor at Queensland Migration Practice, Rosemary Acutt, told The Feed, “the laws have been designed to try and discourage people from trying to circumnavigate Australia's adoption process.”

“There's also the issue of making sure that children are being given up for a legitimate reason. They don't want to create some cash for children arrangements, child trafficking, that sort of thing,” she added.

The couple managed to obtain legal permission from The Philippines to adopt Allysha in March 2014.

However, in a letter to Andrew, seen by The Feed, the Department of Home Affairs advised him “the Department is not able to grant an Adoption visa to a child where the adoption does not meet the legislated requirements set out in the Migration Regulations 1994, even if an adoption has already occurred and is lawful in the overseas country.”

“A requirement of the other subsections is that the applicant be a permanent resident at the time of application and time of decision on the application,” the Department added.

In another letter, the Department said the Minister had “exhausted the Minister’s section 351 public interest power and consequently this power is no longer available in Allysha’s case.”

A spokesperson from the Department told The Feed it “does not comment on individual cases”, however, “there is currently no intercountry adoption arrangement between Australia and the Philippines under the Hague Convention.”

“Australian citizenship is automatically acquired when a person: is adopted in Australia (including an overseas adoption finalised in Australia under Australian law); is present in Australia as a permanent resident at that time; and, at least one adoptive parent is an Australian citizen at the time of the adoption,” they said.

The spokesperson added if a child is adopted privately overseas outside of the Hague Adoption Convention, the adoption must comply with the laws of the foreign country.

The adoptive parent(s) must also lawfully acquire full and permanent parental rights by adoption, and at least one of the adoptive parents must live outside of Australia for 12 months before the application is lodged.

Andrew has already applied for another student visa for Allysha but said he’s yet to hear back from Home Affairs about whether it's been granted.

Ms Acutt said Allysha’s only pathway to citizenship is for her to apply for a student visa while in high school and to reapply for another student visa if she chooses to undertake tertiary studies.

“Unfortunately, there is no sort of Band-Aid approach with these sorts of things and for good reason. It sets a dangerous precedent,” Ms Acutt said.

Allysha has spent the majority of her life in Australia with the couple and their two sons. She doesn’t speak Filipino and has no ties to her biological parents.

The stress regarding Allysha’s uncertain future, and the consistent battle for her to remain in Australia, has dramatically impacted the family, Andrew claims.

“You can just see in her that she’s sort of deflated,” Andrew said of Allysha.

With his wife, Andrew runs a sprawling business that he operates from Queensland.

Andrew said if Allysha is deported to The Philippines, the family will be separated as his wife would accompany Allysha while he’d remain in Australia to manage the business.

“I think the thing you have to remember here is that we did do wrong,” he said.

“We’ve done the time. We've been through enough pain with immigration."

“Why can't we just get these guys to tick the box and deliver a better life?”