Department of Internal Affairs not unreasonable to follow legislation regarding citizenship application for adopted Russian child

Immigration
Legislation:
Ombudsmen Act 1975
Related legislation:
Adoption Act 1955
Legislation display text:
Ombudsmen Act 1975, Adoption Act 1955, Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption
Agency:
Government Department
Ombudsman:
Dame Beverley Wakem
Case number(s):
W56389
Issue date:
Format:
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Language:
English

Citizenship—citizenship by descent approval dependent on overseas clarification

The complainant claimed that a decision by Department of Internal Affairs (DIA) to decline recognition of adoption for the purposes of NZ citizenship by descent, pending clarification of the legal position from Russian authorities, was unreasonable.

The Ombudsman considered the complaint and noted this was a precedent situation involving the adoption in Russia of a Russian citizen child by a dual Russian/NZ citizen who was habitually resident in NZ. Although Russia had signed the Hague Convention (Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption), it has not yet ratified, accepted or approved it, and is thus not yet a Contracting State. The Hague Convention was therefore not applicable to adoptions between Russia and NZ, and such adoptions need to be considered under section 17 of the Adoption Act 1955.

The DIA had concerns about the validity of the daughter’s adoption, based on translated Russian adoption legislation which indicated that Russian citizens resident overseas must meet the same requirements as foreign citizens when seeking to adopt children in Russia. The complainant was asked to authorise DIA to clarify the situation with Russian authorities, but the complainant declined to provide necessary authorization.

It appeared to the Ombudsman that the current impasse was understandable because it was the responsibility of DIA to administer the legislation applicable to its sphere of operations and this included inter-country adoption matters. The Ombudsman told the complainant that she had no power to direct any government agency to ignore or circumvent the requirements of legislation put in place by Parliament, and that while the complainant might disagree with DIA’s interpretation of the relevant legislation, the Ombudsman formed the view that DIA’s decisions and actions were not unreasonable or unfair.

While the complaint was not sustained, in relation to the decision of the Department not to recognize the adoption of the complainant’s daughter for the purpose of NZ citizenship by descent, the complainant had other options to progress the matter, by providing the authorisation requested by the Department or by taking the matter to Court.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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