1501381 (Migration)

[2016] AATA 3738

1501381 (Migration) [2016] AATA 3738 (14 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Kim Hong Le

VISA APPLICANT:  Miss Thi Hong Ngoc Le

CASE NUMBER:  1501381

DIBP REFERENCE(S):  OSF2013/028181

MEMBER:Lisa Lo Piccolo

DATE:14 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 14 April 2016 at 4:49pm

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 19 January 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 10 December 2013. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).  In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211 which relevantly requires that, at the time of application, the visa applicant is the child other than an adopted child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen.

4. The delegate refused to grant the visa on the basis that cl.101.211(1)(c)(i)(A) and cl.101.221(1)(a) were not met because the delegate was not satisfied that the visa applicant is the child of the sponsor.  A copy of the delegate’s decision was provided to the Tribunal by the sponsor.

5. The review applicant (sponsor) appeared before the Tribunal on 14 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the visa applicant is the child of the sponsor at the time of the application.

Relevant Law

1. Clause 101.211(1)(i)(A) relevantly requires that the applicant is the child (other than an adopted child) of the sponsor.  Clause 101.221 requires that at the time of the decision, the visa applicant continues to satisfy the criterion in cl.101.211.

2. S.5CA(1) of the Act relevantly provides that someone who is a child of the person within the meaning of the Family Law Act 1975.  This includes a birth mother. S.61E(2) of the Family Law Act provides that parental responsibility for a child ends of the adoption of that child.

3. Under subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements by a person or persons (the adoptive parents), the child is taken to be the child of the adoptive parent or parents; and the child is taken not to be the child of any other person (including a person who had been the child's parent or adoptive parent before the adoption).   This is on the basis that the adoption severed the relationship between the biological parent and the biological child, and the parent ceases to have parental responsibility for the child.

Documents before the Tribunal

1. A copy of the visa applicant’s birth certificate was submitted to the Department and lists the sponsor as the mother.  The visa applicant’s date of birth is stated as 21 January 2012. 

2. A copy of a Certificate of adoption issued by the People’s Committee of Ward 11, District 8, Ho Chi Minh City was also submitted to the Department.  The adoption was registered on 18 March 2002. 

3. A household registration regarding the visa applicant was also submitted to the Department.  That household registration was on 14 February 2012 and shows the applicant is the adopted child of the household owner and his wife: Mr Nguyen Van Xinh and Ms Le Thi Mai. 

4. A document entitled Settlement Decision on Adoption Termination Requirement from the People’s Court of Ho Chi Minh City and dated 10 June 2015 has been submitted to the Tribunal.  That decision records its judgment as follows:

   1.Accept the requirement of Mr Nguyen Van Xinh

   1.1 Terminate the adoption for the [visa applicant]

   1.2 Assign the [visa applicant] … for the birth mother [the sponsor] to nurture and educate directly

   1.3 Recognize the voluntary of Mr Nguyen Van Xinh and Ms Le Thi Mai continue [sic] to nurture the [visa applicant] until [the sponsor] comes from Australia to receive and nurtures the child directly or until the child [the visa applicant] is 18

   1.4 the cost of raising the child [the visa applicant] the parties do not request the Court to resolve so no judging

5. The delegate’s decision record states that the sponsor- was interviewed by telephone on 21 May 2014 and stated that the visa applicant was her biological daughter who was legally adopted by her sister, Ms Le Thi Mai and her spouse Mr Nguyen Van Xinh in 2002.  The decision also records that the adoptive mother Ms Le Thi Mai was also interviewed who confirmed that she had legally adopted the visa applicant in 2002 and legal adoption papers were issued by the People’s Committee Ward 11, District 6, Ho Chi Minh City at the time. 

Sponsor’s Evidence at Hearing and Analysis

1. The sponsor gave evidence that the visa applicant is her biological daughter.  She said that her sister and brother in law adopted the visa applicant because she was a single mother.  She said that she wants her daughter to live in Australia with her and her sister and brother in law have agreed.  She said that they had discussed terminating the adoption order before they lodged the application, but had not lodged any paper work.  She said that last year in June 2015, her sister applied to terminate the adoption order.  She said that her daughter continues to live with her sister and brother in law and will continue to do so until she is able to migrate to Australia to be with her. 

1. The Delegate concluded that since there was no evidence that an application for termination of the adoption had been made, it was therefore satisfied that the adoption is still in force. 

2. Based on the available evidence, the Tribunal accepts that the visa applicant was legally adopted by Mr Nguyen Van Xinh and Ms Le Thi Mai.  The Tribunal concurs with the delegate that the household registration confirms that the relationship between the visa applicant and the adoptive parents has been legally recognized. 

3. The sponsor’s representative submitted that the sponsor and her sister (the adopted mother) had already orally agreed to terminate the adoption at the time they lodged the application.  He said that this should enable the Tribunal to find that the arrangement was at an end.  He said that if they were to re-lodge the application, they would meet the time of application requirements and affirming the decision and requiring them to lodge another application would be unnecessarily costly and detrimental to the child’s welfare. 

4. A close examination of the Department’s file reveals that there was no evidence before the delegate that the sponsor and the adopted parents had agreed to terminate the adoption.  There is also no reference to this in the sponsor’s statutory declaration dated 10 April 2013.  There is also no evidence before the Tribunal that an application for termination had been made at the time of the application.  To the contrary, the judgment of the People’s Court states that they were considering an application dated 13 March 2015.  In any case, even if an application for termination of the adoption had been made on or before the time of the application, the adoption order would remain in force until a valid order for termination had been made.  For the same reason the Tribunal does not accept the representative’s submission that an oral discussion or agreement between the sponsor and the adopted parents can overturn the adoption order made by the People’s Committee of Ward 11, District 8, Ho Chi Minh City.  The Tribunal is satisfied that the adoption was in force at the time of the application. 

5. Accordingly, the Tribunal is not satisfied that the visa applicant is the child of the sponsor and as such, is not satisfied that the visa applicant meets 101.211(1)(c)(i)(A).

6. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

OTHER

1. Whilst the Tribunal is not required to determine the issue, the Tribunal notes its concerns with respect to the purported termination of adoption in the Settlement Decision.  The termination purports to be made under Article 27 of the Law on Adoption 2010 (Socialist Republic of Vietnam).  Article 27(1) provides that the rights and obligations between the adoptive parents and adopted child terminate on the date the court decision to terminate the adoption takes legal effect. Article 27(2) provides that in case the adopted person is assigned to his/her natural parents (as in this case), the rights and obligations of the natural parents which have terminated under Clause 4, Article 24 of this Law will be restored.

2. However, the grounds for termination are specified in Article 25 of the Law.  It provides that an adoption may be terminated in the following cases:

   1.   The adopted child has grown mature and the adoptive parents terminate the adoption at their own will;

   2.   The adopted child is convicted of any of the following crimes: intentionally infringing upon the lives, health, dignity and honor [sic] of the adoptive parents; maltreating and persecuting the adoptive parents and dissipating the adoptive parents' property;

   3.   The adoptive parents are convicted of intentionally infringing upon the lives, health, dignity and honor [sic] of the adopted child; or maltreating and persecuting the adopted child;

   4.   Violating the provisions of Article 13 of this Law.

3. Article 13 lists a number of prohibited acts which provide grounds for termination:

   Taking advantage of adoption for self-seeking purposes, exploiting the working capacity, sexually abusing, abducting or trafficking in children.

   Forging papers for adoption settlement.

   Discriminating between natural and adopted children.

   Taking advantage of adoption to violate the population law.

   Abusing the adoption by war invalids, persons with meritorious services to the revolution or ethnic minority persons to enjoy state incentives.

   Grandparents adopting their grandchildren or siblings adopting one another.

   Taking advantage of adoption to act against the law or fine national customs, practices, ethics or cultural traditions.

4. According to the summary of the evidence included in the Settlement Decision, the adopted father made his application on the basis that his families’ current economic circumstances are difficult and they cannot continue to nurture and educate the child.  The sponsor told the Tribunal the reason for the termination was to enable the visa applicant to migrate to Australia to live with her. 

5. Based on the evidence before the Tribunal summarised in the Settlement Decision and the sponsor’s oral evidence, the Tribunal is concerned that there were no lawful grounds for terminating the adoption.  This raises issues as to whether the People’s Court had Jurisdiction to make the termination order, and accordingly whether the order is valid.  In the event that the visa applicant makes another application, this will be a matter for the Department to determine.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Lisa Lo Piccolo
Member