1412178 (Migration)

1412178 (Migration) [2016] AATA 4788 (3 December 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Pongthya Hem
VISA APPLICANT:  Ms Racine Chau
CASE NUMBER:  1412178
DIBP REFERENCE(S):  OSF20123/092239
MEMBER:John Billings
DATE:3 December 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 143 Contributory Parent (Migrant) visa:
·cl.143.213 of Schedule 2 to the Regulations.

Statement made on 03 December 2016 at 4:50pm
CATCHWORDS
Migration – Contributory Parent (Migrant)(Class CA) visa – Subclass 143 Contributory Parent (Migrant) - Subclass 143.213 – Balance of family test – Cared for 2 nephews but never adopted them – No intention to adopt - Upkeep paid for by parents – Review applicant is the only son -

LEGISLATION
Migration Act 1958, Migration Regulations, cl.143.213, r.1.05,
CASES
Greene, Sithy Vutha [2003] MRTA 3431
Phlong, Savin [2004] MRTA 2879

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 May 2014 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Ms Chau, applied for the visa on 15 August 2012. The delegate refused to grant the visa on the basis that Ms Chau did not meet the requirements of cl.143.213 of the Regulations because she failed to satisfy the “balance of family test”. This was because the delegate found that she has two adopted children in Cambodia: see further below. The review applicant, Mr Hem, her biological son, applied for review on 1 July 2014. He provided a copy of the primary decision with the application for review.
Mr Hem appeared before the Tribunal on 30 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Chau and, by telephone, from Mr Ky Mean. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
Mr Hem was represented in relation to the review by his registered migration agent. The representative attended the hearing.
Ms Chau is a 59 year old national of Cambodia. She has visited Australia a number of times since she first visited in 2010. Ms Chau last arrived on 16 July 2016 holding Class FA Subclass 600 Visitor visa that ceases on 16 January 2017.
When Ms Chau applied for the Contributory Parent visa her late husband, Dr Sok Han Hem, also applied. Dr Hem died on 25 November 2012.
Mr Hem is a 35 year old Australian citizen. He first arrived in Australia in 2008. He was granted citizenship in 2013. Ms Chau claims that Mr Hem is her only child. The two children whom the delegate found to be her adopted children are Mr Samnang Mean (“Samnang”), aged 18 years, and Mr Tararith Mean (“Tararith”), aged 16. Ms Chau says that Samnang and Tararith are her nephews. Their biological mother, Ms Sopheak Hem (the youngest sister of Dr Hem), died in early 2011. Ms Hem’s husband, the biological father of Samnang and Tararith, is Mr Ky Mean. Ms Hem and Mr Mean were diagnosed with the same chronic illness in or about the year Tararith was born. Mr Mean’s illness has been managed to the point where he has been able to continue his work both as a car dealer and a local government employee.
Tararith visited from December 2010 to January 2011, at the same time as Ms Chau. Samnang has not travelled to Australia.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Ms Chau has to satisfy the “balance of family test” as at the date the application was made because she did not hold a Subclass 173 visa or a substituted Subclass 676 visa at the time: cl.143.213.
The balance of family test is defined in r.1.05: see attachment to this decision record. The effect of r.105 in the present case is that Ms Chau will satisfy the balance of family test if the number of her eligible children is greater than or equal to the number of her ineligible children. Ms Chau has one eligible child – Mr Hem – who is an Australian citizen. If she has any child who is not an Australian citizen, permanent resident or eligible New Zealand citizen usually resident in Australia, that child will be an ineligible child. “Child” includes an adopted child: s.5CA. Adoption is defined in r.1.04: see attachment. A person is taken to have been adopted by another person if, before the adoptee turned 18, the adopter assumed a parental role under formal adoption arrangements (where the persons recognised as parents cease to be recognised and the adopter becomes recognised) (“formal adoption”), or other arrangements entered into outside Australia made in accordance with usual practice or recognised custom (“customary adoption”) in circumstances where, among other things, the Minister is satisfied that formal adoption was not available or reasonably practicable.
As the representative put it, in a written submission dated 31 January 2016, it is uncontroversial that if Samnang and Tararith are Ms Chau’s adopted children she would be unable to satisfy the balance of family test.
The material before the Tribunal extends beyond the material that is referred to in the primary decision. The primary decision refers, imprecisely, to “Departmental records” that indicate that Dr Hem and Ms Chau adopted their nephews Samnang and Tararith. More specifically, the delegate noted that Departmental records indicate the following:
·Samnang and Tararith were recorded in the “Residence Book” of Dr Hem and Ms Chau, the date of the record being 14 February 2012.
·Ms Chau applied for tourist visas before and after she applied for the Contributory Parent visa. Included in an application made in 2010 were statutory declarations dated 6 August 2010. In one statutory declaration Mr Hem said he would like to support his parents and his “brother”, Tararith, to visit Australia. In another statutory declaration Ms Kunthea Hem (“Mr Hem’s wife”) referred to Tararith as Mr Hem’s “brother”. Included in an application made in 2013 was a statutory declaration by Mr Hem’s wife (not witnessed) in which she expressed support for her “brother-in-law”, Tararith. Submitted with this application was a biometrics consent form signed by Ms Chau as “parent or guardian” of Tararith. The “same residence register” (a reference, presumably, to the “Residence Book”) was submitted. The document records Samnang and Tararith as “adopted nephews”.
There were submissions made concerning adoption in Cambodia and legal opinions by two Cambodian lawyers were provided to the Tribunal. The Tribunal concludes that there has been no actual adoption of Samnang and Tararith by Ms Chau and her late husband. It will be seen that the Tribunal reaches that conclusion for specific reasons and does so in spite of the indications in the material that there was an adoption.
The indications that there was an adoption are not limited to what is set out in the primary decision. The Residence Book referred to in the decision bears the date 10 January 2007. There is also a “Registry of Family Members” showing Mr Hem and his parents with the date of registration 9 January 2007 and Samnang and Tararith with the date of registration 6 February 2012. There are also some documents – a “Report” (undated), an “Agreement” (dated 6 February 2012), and an “Application for Additional Members” (dated 6 April 2012) – that are all to the effect of a request that Samnang and Tararith be added to the “residence book” or “family book” and that all refer to each of them as “adopted nephew”. The “Agreement” was evidently made before a police inspector in Dr Hem’s and Ms Chau’s district. It bears their thumbprints. It does not bear the name, mark or signature of Mr Mean.
The above documents relate to an address in Phnom Penh. The Tribunal heard that Dr Hem and Ms Chau and Samnang and Tararith and Mr Mean have always lived in Phnom Penh.
In a statement to the Department dated 9 March 2014 Mr Hem referred to a separate application Dr Hem and Ms Chau made earlier in 2012 for Contributory Parent visas. In oral evidence to the Tribunal he elaborated on what appears in his statement. Mr Hem said in effect that he was (wrongly) advised by a staff member of the Cambodian Association in Australia that Samnang and Tararith could be added to the application in circumstances where their mother was deceased and their father had a chronic illness. In his written statement he said that his parents “had the intention to adopt the children when coming to Australia but … withdrew the (visa) application and did not adopt the children as they are still under the care of their father”. Attached to the statement are documents that include the page of the previous visa application on which Dr Hem disclosed the names of “other family members”. Mr Hem is named as Dr Hem’s child. Samnang’s and Tararith’s names do not appear on that page. The Tribunal has not seen the whole of that visa application. Mr Hem said in effect that his cousins were included as visa applicants but they were not identified there as his parents’ children. As the representative put it, it was thought at the time that the family would “have a go” and include the nephews. The visa application was withdrawn with when it was realised that it would not succeed.
In oral evidence to the Tribunal Mr Hem said that there was in fact no intention on his parents’ part to adopt his cousins. Ms Chau and Mr Mean gave evidence to like effect.
However the relationship between Ms Chau and Samnang and Tararith may have been perceived by anyone at any given time, and however the relationship may have been expressed by anyone, including officials who recorded the names in the Residence Book, for the reasons below the Tribunal’s conclusion is still that Samnang and Tararith were never actually adopted.
It is now necessary to refer further to the evidence concerning the relationship between Ms Chau and Samnang and Tararith and to the circumstances in which their names were entered in the Residence Book. That evidence consists of a statutory declaration made by Mr Hem dated 6 March 2015 and the oral evidence given to the Tribunal. In summary, the evidence is that when they were very young Samnang and Tararith were living with their parents in a few kilometres from Dr Hem’s and Ms Chau’s house. The parents were not well but they were able to work. Mr Mean often took Tararith to Dr Hem’s and Ms Chau’s house. At the time Samnang was often cared for by his grandparents or was at a pre-school centre but sometimes he too went to Dr Hem’s and Ms Chau’s house. When they began primary school they went to a school that was across the road from Dr Hem’s and Ms Chau’s house. One or other parent would drop the children off and collect them from Dr Hem’s and Ms Chau’s house at either end of the day. After Samnang and Tararith left the primary school they still visited but only on weekends and school holidays. The evidence was further to the effect that Dr Hem – who ran a popular clinic from home - had the residence book altered to prevent repeated approaches by local officials who told him that Samnang and Tararith should be registered (given the amount of time they spent at his house). Mr Mean agreed to the registration. Mr Mean, however, and his wife when she was alive, were always the ones who supported Samnang and Tararith financially (including paying for Tararith’s trip to Australia): Dr Hem and Ms Chau did not ever provide for the children’s upkeep.
In his statutory declaration made in March 2015, Mr Hem said for instance that as far as he knew Mr Mean had never given “express consent” for Samnang and Tararith to be adopted. For her part, Ms Chau was uncertain about some matters – such as the amendment to the residence book – because she said that she left such things to Dr Hem. Nevertheless, both she and Mr Mean gave evidence that there was never any agreement by Mr Mean for adoption. There was never any petition to a Court for adoption. There was never any Court order for adoption.
Pausing here, the Tribunal accepts the evidence that there has been no petition to a Court for adoption and that there is no Court order for adoption. This is not to say that the evidence was in all respects satisfactory, or that there are no indications that adoption was at least considered. While there appears to have been registration of Samnang and Tararith in 2007, the registration (or re-registration) in February 2012 seems consistent with Mr Hem’s statement to the Department about an intention to adopt in that year at or about the time when the first Contributory Parent visa application was made. At one point in the hearing Mr Mean said in effect that after his wife died he thought it best for his sons to be included in Dr Hem’s family book in case he could no longer take care of them. He later used the expression (as it was interpreted) that he took his sons back after Dr Hem died. Still he maintained that he and his wife had always financially supported the children and had never agreed for them to be adopted.
In referring to evidence that was not satisfactory the Tribunal now refers to the statutory declarations by Mr Hem and his wife that referred to Samnang and Tararith as Mr Hem’s brothers. Mr Hem maintained that he referred to them as his brothers because in his culture and in the Khmer language it is very common to use the expression “brother” to refer to a male relative or close friend. Questioned by the Tribunal, he confirmed that to be the position. He confirmed that he was not saying, instead, that whereas he had once regarded Samnang and Tararith as his parents’ adopted children he had come to understand that actually that they are not. The Tribunal accepts the general point about possible cultural and linguistic differences in references to family members, but is concerned that the statutory declarations were written in English for the purpose of supporting visa applications. At the same time there is evidence that in 2013, when Mr Hem’s wife made a statutory declaration in which she referred to Tararith as Mr Hem’s “brother”, Ms Chau referred in her application to Mr Hem as her “only” son: see immediately below. The Tribunal’s ultimate conclusion is not affected by the references in statutory declarations to Tararith as Mr Hem’s brother.
The written submission dated 31 January 2016 argues that documents such as the Residence Book are of “marginal, if any, relevance” and that various declarations by Mr Hem, his wife and Ms Chau, “if anything, convey their respective authors’ (sic) misunderstanding of, or imprecision in describing, the relevant relationship”. The submission goes on to quote from Ms Chau’s Tourist visa application made in 2013 (a copy of the relevant page of which was provided to the Tribunal). She said there: “After my husband passed away I feel very depress and lonely so want to have a holiday and stay with my only son for only 6 months” (sic).
Now, before turning to the Cambodian legal opinions, the Tribunal mentions important further pieces of evidence. They are birth certificates extracts for Samnang and Tararith. For each of them there was submitted an extract with an issue date of 6 April 2010 and also an extract with an issue date of 10 February 2016. The representative said that the purpose of submitting the later extracts was to “rule out the small possibility” that the original birth records were altered sometime after 6 April 2010”. The extracts show Ms Hem and Mr Mean to be the parents. The extracts contain no relevant marginal or other notes.
The legal opinions refer to relevant articles in the Cambodian Civil Code. Relevant extracts from the Code were submitted to the Tribunal.
The first legal opinion is by Mr Dim Chaoseng of Cambodia International Law Firm ( and is dated 23 February 2015. Referring to the “Agreement” and the “Application for Additional Members” the opinion is to the effect that the documents do not evidence adoption but are merely “administrative documents required by the local authority to add name (sic) of people in the residence book”. The opinion continues that adoption can be established only by the decision of a court in response to a petition. As there was no petition in this case there is no “legally valid adoption agreement”. The agreement is “the fostering agreement only”.
The second legal opinion is by Mr Darwin Hem of BNG Legal ( and is dated 29 January 2016. (Mr Darwin Hem is not related to Dr Hem or his family). The opinion refers to “full adoption” and contrasts that with “simple adoption”. Under full adoption the relationship between the child and natural parents terminates and a new birth certificate is issued to reflect that. Under simple adoption the relationship between the child and natural parents continues, preserving inheritance rights, and a note of the adoption is made in the margin of the birth certificate. “In principle”, for full adoption, the adoptee must be aged less than eight years. For simple adoption, the adoptee’s consent must be obtained (if he or she has attained the age of 15 years) or may be obtained (if he or she is younger but can express it). Ordinarily, the consent of natural parents, required for full adoption, is given through an adoption agreement made in front of the chief of the village/sangkat of the natural parents. In this case the “agreement” was, among other things, made before a police inspector. (The Tribunal has noted that the document does not bear the name, mark or signature of Mr Mean). The opinion continues that the term “adopted nephew” was used whereas the required agreement would have “adoptive daughter/son …” The term “adopted nephew” “does not formally exist in Cambodian Law”. “Adopted nephew” does not equate with “adopted child”. A petition to the court is required for adoption. There was no petition. Cambodian law does not stipulate that registration of family members in the register of family members is considered to be adoption.
Mr Darwin Hem’s opinion further indicates that there is no customary adoption in Cambodia. Adoption is available only via petition to the court. The court of competent jurisdiction varies according to whether full or simple adoption is sought but, as all parties were living in Phnom Penh, it would be the same court – the Phnom Penh Municipal Court.
On the basis of the evidence, as analysed by the Tribunal, including the Cambodian legal opinions, applying r.1.04 of the Regulations, the Tribunal makes the following findings. There has been no formal adoption made in accordance with or recognised under any relevant Australian law. There has been no formal adoption made in accordance with the law of Cambodia, 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. The Tribunal accepts the evidence that there was no petition to a court in Cambodia and no order made by a court in Cambodia. The birth certificate extracts issued in 2010 and in 2016 appear to confirm the Tribunal’s finding. There has been no customary adoption. Legal opinion indicates that there is no relevant usual practice or recognised custom in Cambodia. But in any event, the general evidence indicates in particular that formal adoption was available in Phnom Penh and would have been reasonably practicable.
It is convenient for the Tribunal to restate now that however the relationship between Ms Chau and Samnang and Tararith may have been perceived by anyone at any given time, and however the relationship may have been expressed by anyone, including officials who recorded the names in the Residence Book, for the reasons given the Tribunal’s conclusion is that Samnang and Tararith were never actually adopted.

The biometrics consent form referred to by the delegate in the primary decision indicates that Ms Chau signed as the “parent or guardian” of Tararith. Ms Chau’s case is based on her never having been his parent. Whatever the precise meaning of “guardian” in the present context it clearly falls short of “parent”.
In the written submission dated 31 January 2016 the point is made that the mental state of the visa applicant is irrelevant and that the assumption of a parental role – such as a foster parent – is not by itself sufficient to establish that a person is the parent of a child. MRT (Migration Review Tribunal) decisions in Greene, Sithy Vutha [2003] MRTA 3431 and Phlong, Savin [2004] MRTA 2879 are cited to illustrate the point. In the present case, the evidence indicates that to a greater or lesser degree as circumstances within the family evolved, Dr Hem and Ms Chau assumed a very significant role in the care of Samnang and Tararith. In the Tribunal’s view, there may sometimes have been elements of foster care in that role, but there was no adoption.
Towards the end of the submission dated 31 January 2016 it is submitted that “if [Ms Chau] intended to include ‘her’ two minor children as secondary applicants in the first Contributory Parent [visa] application, she would almost certainly have submitted all of the evidence available to her in support of the proposition that she had adopted them”. It was submitted in effect that the fact that Ms Chau did not submit evidence of formal adoption was evidence that there was no formal adoption. Concerning this, it is necessary to say only that the Tribunal has reached its conclusion not for that reason but for the reasons it has set out above.
Ms Chau told the Tribunal that she was not sure if Samnang and Tararith were referred to as her children in her first Contributory Parent visa application because her late husband looked after that. The Tribunal’s attention was drawn to the reference she made in a 2013 visa application to Mr Hem as her “only son”. If there were evidence that she referred to Mr Hem in that way in visa applications she made before the one presently being considered that might have assisted her case more, still it tends to show that even if Tararith was being described in 2013 as Mr Hem’s “brother” he was not consistently or unequivocally described in that way.
The Tribunal does not have before it all of the information or documents given by Ms Chau to the Minister in connection with what previous visa applications may now be relevant. The first Contributory Parent visa application made in 2012 did not result in the grant of the visa. There appears to have been Class TR Subclass 676 Tourist visa held by Ms Chau in the same year, before the visa application now under consideration was made. If any information was given about Samnang or Tararith to the Minister in relation to that Tourist visa, there would be a question whether that was information that was false or misleading in a material particular such that the requirements of PIC (Public Interest Criterion) 4020 would not be met. But the circumstances appear to the Tribunal to be such that Ms Chau could benefit from the waiver provisions especially on the basis of the interests of Australian citizens, mainly Mr Hem. The Tribunal incidentally heard general evidence relevant to that point that that need not be recorded here. That is for the reason that, in accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made.
The Tribunal’s conclusion is based essentially on the evidence that there was no petition for adoption or court order for adoption, so there was no formal adoption. The evidence in support of that finding includes the birth certificate extracts. The Tribunal’s conclusion is further based on the evidence that there was no customary adoption.
As the Tribunal has concluded that Ms Chau has only one child, Mr Hem, who is an eligible child, it follows that Ms Chau satisfies the balance of family test. Ms Chau therefore satisfies cl.143.213.
DECISION
The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 143 Contributory Parent (Migrant) visa:
·cl.143.213 of Schedule 2 to the Regulations.
John Billings
Senior Member

ATTACHMENT
Reg 1.05 Balance of family test
1.05 (1) For the purposes of this regulation:
(a) a person is a child of another person (the parent) if the person is a child or step-child of:
(i) the parent; or
(ii) a current spouse or current de facto partner of the parent; and
(b) if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child's last known usual country of residence.
(2) For this regulation:
(a) a child of the parent is an eligible child if the child is:
(i) an Australian citizen; or
(ii) an Australian permanent resident usually resident in Australia; or
(iii) an eligible New Zealand citizen usually resident in Australia; and
(b) any other child of the parent is an ineligible child.
(2A) An ineligible child is taken to be resident overseas.
(2B) The overseas country in which an ineligible child is taken to reside is:
(a) the overseas country in which the child is usually resident; or
(b) the last overseas country in which the child was usually resident; or
(c) if the child no longer has a right of return to the country mentioned in paragraph (a) or (b) — the child’s country of citizenship.
(2C) A parent satisfies the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.
(2D) However, if the greatest number of children who are:
(a) ineligible children; and
(b) usually resident in a particular overseas country;
is less than the number of eligible children, then the parent satisfies the balance of family test.
(3) In applying the balance of family test, no account is to be taken of a child of the parent:
(a) if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or
(b) if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or
(c) if the child:
(i) is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and
(ii) is registered by the Commissioner as a refugee.
Reg 1.04 Adoption
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

[2016] AATA 4788

3 December 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction