1411122 (Migration)

[2015] AATA 3357

1411122 (Migration) [2015] AATA 3357 (28 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Zhongcui Li

VISA APPLICANT:  Miss Menglu Che

CASE NUMBER:  1411122

DIBP REFERENCE(S):  OSF/023557

MEMBER:Alan Duri

DATE:28 August 2015

PLACE OF DECISION:  Sydney

DECISION: The tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211(1)(c) of Schedule 2 to the Regulations.

Statement made on 28 August 2015 at 5:11pm

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 30 May 2014 to refuse to grant Miss Menglu Che a Child (Migrant) (Class AH) Subclass 102 visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Che was born on 27 March 2003 in China.

3. Miss Che applied for the visa on 22 April 2014 on the basis that she was an adopted child of an Australian permanent resident, Ms Zhongcui Li.

4. The following is a history of the visa application:

   ·Mrs Li is married an Australian citizen Michael Connelly on 20 January 2011.  She subsequently applied for a partner visa and came to Australia in 2011 on a Subclass 309 provisional partner visa and was granted a Subclass 100 permanent partner visa on 17 June 2013.  Mrs Li’s partner visa application included Miss Che as her dependent.  However, at the time Mrs Li was unable to demonstrate that she had adopted Miss Che.  Mrs Li subsequently withdrew Miss Li from her 2011 partner visa application.

   ·In a statement provided with the current application, Mrs Li indicated that she informally adopted Ms Che in 2003. Mrs Li indicated that she had a verbal agreement with Miss Che’s biological parents and that Miss Che lived with Mrs Li’s family. 

   ·The department’s file contains a copy of a Chinese adoption certificate dated 9 August 2013.    

5. On 30 May 2014 the delegate refused to grant the visa on the basis that the arrangements concerning Miss Che do not satisfy the definition of adopted under r.1.04(2).  Accordingly Miss Che does not satisfy cl.102.211.   

   Hearing 

6. The review applicant Mrs Li appeared before the tribunal on 27 August 2015 to give evidence and present arguments.  The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The tribunal asked Mrs Li about the adoption certificate on the department file.  Mrs Li told the tribunal that her one wish is to get her daughter Meng Lu to Australia.  She made enquiries and found out that international adoption was very difficult.  Mrs Li told the tribunal that she spoke with an official in Sichuan, who was moved by her story and offered to help.  The official indicated that there was a condition that Mrs Li had to be single for the purposes of the adoption.  (In fact Mrs Li was married to Mr Connelly.)  Mrs Li took Meng Lu from Guangdong to Sichuan to meet the official.  The adoption certificate was issued and Mrs Li gave the official some money for his favours. 

8. Mrs Li told the tribunal that she is a native of Hunan province but moved to Foshan in Guangdong province around 1997 with her then de facto partner.  At the time she thought that she was unable to have children because all her previous pregnancies ended in miscarriages.  Someone told her about a family who had a third child, a daughter Meng Lu.  This family was not in a position to raise the girl and at any rate, they wanted a son.  Meng Lu was about one month old when she entered into Mrs Li’s care.  Mrs Li’s then de facto partner was supportive and also treated Meng Lu as his daughter. (In fact Meng Lu was given Mrs Li’s ex de facto partner’s surname Che.) Me Mrs Li subsequently became pregnant and gave birth to her second daughter in 2004. Mrs Li told the tribunal that she arranged for Meng Lu’s birth certificate and also arranged for Meng Lu to be listed under her biological parents Hukou.  However, Meng Lu lived in the same household as Mrs Li.  Both her daughters were sent to private schools.  Meng Lu was unaware that she was adopted until recently.  Mrs Li’s other daughter also thought that Meng Lu was her biological sister until recently. 

9. Mrs Li indicated that she made some general enquiries about formal adoption.  She understood that it be difficult to adopt Meng Lu because she was not from an orphanage and that she had one child already.  At any rate, Mrs Li did not pursue the matter because she was busy raising two young girls.

10. Mrs Li indicated that her relationship with her former de facto partner ended in 2009.  She frequently referred to her ex-de facto partner is a very good man who was supportive of her.  However, the relationship ended because he was reluctant to get married.

11. The tribunal asked whether Meng Lu’s biological parents have had any role in her upbringing.  Mrs Li stated that she has always kept them informed of Meng Lu’s progress.  Mrs Li said that they are happy to see that their daughter is doing well.  However, they have not provided any financial support for Meng Lu.  In addition Meng Lu has not seen them, or had any contact with them, since she was one month old.

12. Meng Lu is currently a student at a boarding school.  During holidays.  She spends time in Foshan, with Mrs Li’s younger brother.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative): Item 1108 of Schedule 1 to the Regulations. 

14. The Subclass 102 (Adoption) visa is designed for an offshore visa applicant who has been adopted, or is a ‘child for adoption’ by a person who is, or a couple at least one of whom is, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen at the time of adoption.  Alternatively, an offshore visa applicant who is an adopted child may also meet the requirements for a Subclass 101 (Child) visa, but s/he must have been adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became one.

15. Subclass 117 is not applicable in this case.

16. Miss Che has applied for the visa on the basis that she is the adopted child of Mrs Li, an Australian permanent resident.

17. Mrs Li claims that she informally adopted Miss Che when she was one month old.  Mrs Li provided a document showing that she formally adopted Miss Che on 9 August 2013. 

    Subclass 102

18. Clause 102.211 relevantly provides:

    102.211    
    (1)  The applicant meets the requirements of subclause (2), (3), (4) or (5). 

    (2)  An applicant meets the requirements of this subclause if: 

    (a)  the applicant has not turned 18; and 
    (b)  the applicant was adopted overseas by a person who: 

    (i)  was, at the time of the adoption, an Australian citizen, a holder of a permanent visa  or an eligible New Zealand citizen; and
    (ii)  had been residing overseas for more than 12 months at the time of the application; 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 lawfully acquired full and permanent parental rights by the adoption. 

19. Subclauses (3), (4) and (5) are not applicable in this case. 

20. Subclass 102 visas are the situations where an Australian citizen or permanent resident adopts a foreign child.  The discussion below concerns only arrangements made after Mrs Li was granted permanent residence.  

21. In this case Mrs Li does not satisfy the requirements of cl.102.211(2) for two reasons.

    Adoption certificate is bogus

22. Mrs Li provided a Chinese document dated 9 August 2013 that appears to be a formal adoption certificate.   

23. A preliminary question then is whether or not Miss Che was adopted.  The definition of adoption is set out in r.1.04 and is quoted in full later in this decision.  In essence an adoption is defined as “formal adoption arrangements made in accordance with the law of another country”.  In this case, Mrs Li gave clear evidence that the adoption certificate in fact was not made in accordance with Chinese law and was result of bribery of a public official.  This purported adoption certificate carries no weight.

24. The tribunal is not satisfied that there have been formal adoption arrangements that were made in accordance with Chinese law.  It follows that an essential element of cl.102.211(2)(b) is not satisfied.

    Residence requirements

25. Even if the adoption certificate was issued in accordance with Chinese law, Mis Che would still not satisfy cl.102.211(2) because Mrs Li needs to satisfy certain residential requirements.

26. Clause 102.211(2)(b)(ii) requires that the applicant was adopted by a person who “had been residing overseas for more than 12 months at the time of application;”

27. The visa application was lodged on 22 April 2014. The department’s movement records show Mrs Li had been outside Australia from 15 July 2013 to13 August 2013 and again from 2 April 2014 to 8 May 2014. Mrs Li is from China and in her lifetime has obviously spent more than 12 months in China. In Nguyet v MIEA [1997] 74 FCR 422, the Federal Court considered a slightly different claim in the context of a previous, similarly worded, version of the provision. At any rate in reaching its finding the Court used the exact wording of the current provision:

    “It was submitted on behalf of the applicant that this requirement is satisfied where the “adoptive parent” has recited overseas for more than 12 months at “any time before” the application.  This construction of reg 46(a)(ii)(A) is rejected.  On its proper construction, it is necessary that for at least the 12 months prior to the time of the application, the applicant be residing overseas.  It is not sufficient if the applicant has had, at some earlier time, a period of more than 12 months overseas residence….”

28. The tribunal also noted departmental guidelines (PAM3) state that “for 102.211(2)(b)(ii) to be satisfied, it is necessary only that the adoptive parent be residing in any country (or countries) other than Australia for the 12 months prior to lodging the visa application”.

29. The tribunal finds that cl.102.211(2)(b)(ii) be given its meaning as expressed in the department's policy and in case law, i.e. that the adoptive parent(s) had to have been living overseas for 12 months at the time of the visa application.

30. In this case the evidence is clear that Mrs Li had not been residing overseas for more than 12 months at the time of Ms Che’s visa application.

31. It follows then that Mrs Li does not satisfy cl.102.211(2)(b)(ii).  As a consequence Miss Che does not meet an essential criterion grant of subclass 102 visa.

    Subclass 101 visa

32. The tribunal went on to consider whether Miss Che satisfies the criteria for a subclass 101 visa.

33. The time of application criteria is set out in cl.101.211:

    101.211

    (1)    The applicant:

    (a)    is a dependent child of:

    (i)    an Australian citizen; or

    (ii)    the holder of a permanent visa; or

    (iii)    an eligible New Zealand citizen; and

    (b)    subject to subclause (2), has not turned 25; and
    (c)    either:

    (i)    is:

    (A)    the child (other than an adopted child); or
    (B)    the step-child within the meaning of paragraph (b) of the definition of step-child;
    of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or

    (ii)    was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.

34. There is no suggestion that Miss Che is the biological child or stepchild of Mrs Li.  Therefore cl.101.211(1)(c)(ii) is applicable. 

35. As noted above, the tribunal does not accept that Miss Che has been formally adopted by Mrs Li, notwithstanding the adoption certificate.  At any rate, the purported formal adoption occurred at a time when Mrs Li was an Australian permanent resident. 

    Customary adoption

36. Notwithstanding Mrs Li’s ill-advised attempts to obtain the formal adoption certificate, the fact of the matter is that she has raised Meng Lu since she was one month old.  At the time Mrs Li was not yet an Australian permanent resident.  The department’s file contains evidence such as old photographs showing Mrs Li with both Meng Lu and her biological child.  The file also contains a statement from Meng Lu’s biological parents confirming that Mrs Li informally adopted their daughter on 19 May 2003.  The tribunal has no doubts that Mrs Li and her then de facto partner took on a parental role of Meng Lu.  The tribunal has no reason to doubt that Mrs Li has stopped this parental role.  The tribunal is also satisfied that Meng Lu’s biological parents have had no role, either financially or emotionally in the support and raising of Meng Lu.

37. This in turn leads to the question of whether or not Miss Che was customarily adopted by Mrs Li.  Regulation 1.04 provides the definition for adoption:

    (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.

38. The tribunal noted country information that suggests that unregistered adoptions in China account for as much as 80% of total adoptions (Zhang W. 2006 “Who adopts girls and why?  Domestic adoption of female children in contemporary rural China”. The China Journal, no.56, 6 July).  Based on the widespread practice, the tribunal is satisfied that the arrangements were made in accordance with the usual practice in China (r.1.04(2)(a)).

39. Ming Lu has been cared for and provided for by Mrs Li ever since she was an infant.  Based on Mrs Li’s evidence, which is corroborated by the documents she provided as well as photos, the tribunal is satisfied that the child-parent relationship between Meng Lu and Mrs Li is significantly closer than any such relationship between Meng Lu and any other person or persons (r.1.04(2)(b)).

40. Formal adoption is available in China.  Therefore this leads to the question of whether or not formal adoption was not reasonably practicable in the circumstances.

41. The tribunal understands that adoption laws in China stipulates that healthy children, whether foundlings or otherwise, can be adopted only by parents who are childless and over 30 years old (Article 6 as cited Adoption Law of the People’s Republic of China This is corroborated by Susan Greenhalgh and Edwin Winckler in their 2005 book Governing China’s Population which notes:

    Introduced in 1991, the PRC’s first adoption law was designed to close loopholes in birth planning, not to solve the problem of crowded orphanages. Treating adoption as part of birth legislation, the adoption law sharply restricted the pool of adoptive parents to couples who are childless and older (over 35 and, since 1999, over 30).

42. Mrs Li was born in 1969 and was over 30 years old at the time of the informal arrangement with Meng Lu.  In addition, Mrs Li was childless until the birth of her daughter Meng Ying on 14 March 2004. Meng Lu entered into Mrs Li’s care in May 2003.  This means on the tribunal’s understanding of Chinese law at the time, it would have been technically possible for Mrs Li to formally adopt Ming Lu in the nine month period leading up to Meng Ying’s birth. 

43. In this case the tribunal is prepared to accept that given the short window of opportunity to engage in the formal adoption process, combined with the fact that at the time Mrs Li had just become pregnant with her first biological child, the tribunal is prepared to accept it was not reasonably practicable for Mrs Li to formally adopt Meng Lu.  This means tribunal accepts that r.1.04(2)(c)(i) is satisfied.

44. The tribunal was further satisfied that the arrangements have not been contrived to circumvent Australian migration requirements (r.1.04(2)(c)(ii)).

    Summary

45. It is extremely unfortunate and inexcusable that Mrs Li arranged the 9 August 2013 adoption certificate under false pretences.  However, the fact remains that the tribunal is satisfied that Mrs Li customarily adopted Meng Lu Che in 2003.

46. It follows that cl.101.211(1)(c) is satisfied.    

    DECISION

47. The tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.211(1)(c) of Schedule 2 to the Regulations.

    Alan Duri
    Member