1505336 (Migration)

[2015] AATA 3451

1505336 (Migration) [2015] AATA 3451 (14 August 2015)

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thuc Uyen Vu

VISA APPLICANT:  Miss Thuc Minh Thu Vo

CASE NUMBER:  1505336

DIBP REFERENCE:  OSF2014/026735

MEMBER:Rosa Gagliardi

DATE:14 August 2014

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 August 2015 at 2:33pm

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 3 March 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 October 2014. The delegate refused to grant the visa on the basis that the review applicant did not satisfy Regulation 102.221 as she had not been overseas for more than 12 months at the time of application.

3. The review applicant appeared before the Tribunal on 14 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mario Sciula, who is the review applicant's employer and support person. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   RELEVANT LAW

5. 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. The only subclass in respect of which any claims have been advanced is Subclass 102 (Adoption).

6. The criteria for a Subclass 102 visa are set out in Part 102 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

   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.

   (3)An applicant meets the requirements of this subclause if:
   (a) the applicant has not turned 18; and
   (b) the applicant is resident in an overseas country; and
   (c) either:

   (i) a person who is not in a married relationship or de facto relationship, and
   who is an Australian citizen has undertaken in writing to adopt the applicant;
   or
   (ii) spouses or de facto partners, at least one of whom is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, have undertaken in writing to adopt the applicant; and

   (d) a competent authority in Australia:

   (i) has approved the prospective adoptive parent as a suitable adoptive
     parent for the applicant; or
                       (ii) has approved the prospective adoptive parent and the spouse or de facto
     partner of the prospective adoptive parent as suitable adoptive parents for the
     applicant.

   (4) An applicant meets the requirements of this subclause if:
   
                     (a) the applicant has not turned 18; and
     (b) the applicant is a resident in an overseas country; and
     (c) a competent authority in the overseas country has allocated the applicant
     for prospective adoption by a person who is an Australian citizen, a holder of
                      a permanent visa or an eligible New Zealand citizen, or such a person and
                        that person’s spouse or de facto partner; and
     (d) either:
     (i) arrangements for the adoption are in accordance with the Adoption
     Convention; or
     (ii) the adoption is of a kind that may be accorded recognition by regulation 5
     of the Family Law (Bilateral Arrangements-Intercountry Adoption) Regulations
     1998; and
     (e) a competent authority in Australia:
     (i) has approved the prospective adoptive parent as a suitable adoptive
     parent for the applicant; or
   
   (5) An applicant meets the requirements of this subclause if:
                      (a) the applicant has not turned 18; and
                      (b) the applicant was adopted in accordance with the Adoption Convention, in
                      an Adoption Convention country, by a person who was an Australian citizen, a
                      holder of a permanent visa or an eligible New Zealand citizen when the
                      adoption took place, or by such a person and that person’s spouse or de facto
                      partner.

7. Clause 102.221 requires that, at the time of decision, the applicant continues to satisfy the criterion in clause 102.211:

   102.221
   The applicant continues to satisfy the criteria in clauses 102.211 and 102.213

   102.213
   The laws relating to adoption of the country in which the child is normally resident have been complied with.
   
   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant has been adopted by the review applicant who at the time of application had been residing for more than 12 months overseas (Regulation 102.211(2)(b)(ii)).

9. The Tribunal has considered the meaning of this provision in the context of Nguyet v MIEA (1997) 74 FCR 422 (Spender J, 13 May 1997) in which the Court considered a slightly different claim in the context of a previous, similarly worded version of cl.102.211(2)(b)(ii). In this case, the Court held that the provision requires the 12 months or more to be prior to the time of application (the implication is immediately prior to the time of application) and it is not sufficient if the adoptive parent has had, at some earlier time, a period of more than 12 months overseas residence. 

10. During the hearing the applicant argued, as she has in her written submissions, that overall she has spent 22 months in Vietnam bonding with the visa applicant and that therefore she meets the requirements of the visa subclass.

11. The Tribunal showed the review applicant her movement records and explained why only the 12 month period before the application was lodged was relevant in her circumstances.  This application was lodged on 10 October 2014.  The review applicant’s movement records show that in the 12 months leading up to the lodgement of the application, the review applicant travelled out of Australia from 16 February to 11 March 2014 only, which equates to a total of approximately 2 months, with the remaining 10 months spent in Australia.

12. Whilst policy allows for brief visits to Australia by the adoptive parent during the 12 month period, the Tribunal is not satisfied that the review applicant’s time in Australia during the relevant period could be classed a “brief” visit.  The review applicant was in Australia in the 12 months immediately prior to the time of application, for almost 10 months.  Indeed at hearing the review applicant stated that she had returned to Australia to work to secure her economic future and that of the adoptive child.  Her intention had not been to come to Australia briefly after entering the country again on 11 April 2014.

13. For the reasons set out above, the Tribunal finds that the adoptive parent, the review applicant, did not reside overseas for a period of 12 months preceding the visa application.  Accordingly, the visa applicant does not met cl.102.211(2)(b)(ii).  Therefore the Tribunal finds that the visa applicant does not meet the requirements of cl.102.211(2).

    Subclause 102.211(3)

14. This subclause, at 102.211(3)(d), requires, amongst other things, that a competent authority in Australia has approved the prospective adoptive parent as a suitable adoptive parent of the visa applicant, or approved the prospective adoptive parent and the spouse of the prospective adoptive parent as suitable parents for the applicant. 

15. The review applicant is not arguing that she had interacted with any State or Federal government agencies in Australia in relation to the adoption of the visa applicant leading to approval by a competent authority. 

16. With her application the visa applicant has submitted “A Decision to Allow a Vietnamese Child to be Adopted by a Foreigner” issued by the People’s Committee of Ho Chi Minh City on 18 December 2013.  It states that a decision was made to allow the review applicant to adopt the visa applicant, with the decision taking effect on 17 February 2014. 

17. As there is no evidence of a formal adoption process having been undergone in Australia or assessed by Australian authorities, the Tribunal finds that the competent authorities in Australia have not approved the review applicant as a suitable prospective parent of the visa applicant.  The applicant cannot therefore meet the alternative criteria of cl.102.211(3).

    Subclause 102.211(4)

18. This subclause requires, among other things, that a competent authority has allocated the visa applicant for prospective adoption by a person who is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen or such a person and that person’s spouse.  In addition, the subclause requires that the arrangements for the adoption are in accordance with the Adoption Convention or the adoption is of a kind that may be accorded recognition by Regulation 5 of the Family Law (Bilateral Arrangements-Intercountry Adoption) Regulations 1998. 

19. On the evidence before it, the Tribunal finds that a competent authority has not allocated the applicant for prospective adoption. As discussed above, she did not receive any assistance from any Australian authorities and she has not participated in any formal adoption process in Australia.

20. The Tribunal therefore finds that the visa applicant does not satisfy the requirements of cl.102.211(4).

    Subclause 102.211(5)

21. This subclause provides that cl.102.211 may be satisfied if, amongst other things, the visa applicant was adopted in accordance with the Adoption Convention, by a person who was an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen when the adoption took place.  Currently, Vietnam is not an Adoption Convention country within the meaning of r.1.03 (see Schedule 2 of the Family Law (Hague Convention on Intercountry Adoption) Regulation 1998), although the Tribunal understands that the Australian Government is currently prioritising investigations into the viability of establishing new intercountry adoption programmes, including with Vietnam. 

22. As the adoption was not in accordance with an Adoption Convention the Tribunal finds that the visa applicant does not satisfy the requirements of cl.102.211(5).

    OTHER SUB CLASSES

23. In respect of the other visa subclasses of the visa class sought, there is no material before the Tribunal which would permit a finding that the visa applicant meets the prescribed criteria for the visas sought.

24. There are two other subclasses, namely the Subclass 101 (Child), and the Subclass 117 (Orphan Relative) visa.

25. The visa applicant does not meet the criteria for a Subclass 101 (Child) visa because the alternative criteria in cl.101.211(1)(c) are not met, that is, the visa applicant is an adopted child and therefore does not satisfy cl.101.211(1)(c)(i)(A) which requires that the visa applicant  is a child other than an adopted child.  Furthermore, the visa applicant is not a step-child and therefore does not satisfy cl.101.211(1)(c)(i)(B).  Finally, the visa applicant was not adopted overseas by a person who, at the time of adoption, was not [emphasis added] 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, because at the time of adoption the review applicant was the holder of a permanent visa and therefore does not meet the requirement in cl.101.211(1)(c)(ii).

26. Having regard to the definitions of the terms “orphan relative” in r.1.14, “relative” in r.1.03,  “close relative” in r.1.03, “child” in s.5CA and “parent and child” in r.1.14A, the visa applicant does not satisfy cl.117.211(a) because, having a parent who is not dead, permanently incapacitated or of unknown whereabouts, she cannot satisfy the definition of “orphan relative” in r.1.14.   The visa applicant therefore does not meet the requirements of subclass 117.

27. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

28. The Tribunal appreciates that the review applicant will be disappointed with this decision.  At hearing she stated that if she had to re-lodge the application and go overseas for 12 months before doing so, there was a chance she may have to give up her employment which she did not wish to do.  Her employer, Mr Sciula was present at the interview and advised the review applicant that he would be supportive of her decision to the extent it was possible.  As put to the review applicant at hearing it would be in her interests to seek appropriate migration advice given the seriousness of the undertaking she is embarking upon.

    DECISION

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

    Rosa Gagliardi
    Member