1505773 (Migration)

[2015] AATA 3457

1505773 (Migration) [2015] AATA 3457 (8 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Lili Yao

VISA APPLICANT:  Miss Kaixin Du

CASE NUMBER:  1505773

DIBP REFERENCE(S):  OSF2014/053203

MEMBER:Helena Claringbold

DATE:8 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 08 October 2015 at 8:00am

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 16 April 2015 to refuse to grant Miss Kaixin Du, the visa applicant, a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Du applied for the visa on 17 January 2014, on the basis of her relationship with Mrs Lili Yao, who is her sponsor.  Mrs Yao is an Australian citizen who was born in China (refer: D1 f41).

3. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

4. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211(a).

5. The delegate refused to grant the visa because the applicant did not meet cl.117.211(a) of Schedule 2 to the Regulations because the delegate was not satisfied that Miss Du and Mrs Yao are relatives.

6. Mrs Yao requested review of the delegate’s decision.  She appeared before the Tribunal on 7 October 2015, to give evidence and present arguments. The Tribunal also received oral evidence from Mr John William Gill. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Departmental case file OSF2014/053203, folios numbered 1-115, and the Tribunal’s case file 1505773, folios numbered 1-30 and the evidence provided at the Tribunal hearing.

9. The issue in the present case is whether Miss Du is the orphan relative of Mrs Yao.

10. BACKGROUND

    Miss Kaixin Du was born on 24 June 2009.  She is six years old and is a national of China.  On 23 November 2009, she was adopted by Ms Shi Lan Yu.  At the time of her adoption Miss Du had been deserted by unknown parents and was being raised at a social welfare institute (refer: D1 f57).  Ms Shi Lan Yu is Mrs Yao’s mother. 

11. On 20 March 2011, the Yichun City Yuanzhou District People’s Court in a Civil Judgement dated 20 March 2011, appointed Mrs Yao (as requested in her mother’s will refer: T1 f25) as the guardian of Miss Du (refer: D1 f62).   

12. On 4 November 2013, Ms Shi Lan Yu adoption of Miss Kaixin Du and Mrs Yao’s guardianship were affirmed by the Yichun City Yuanzhou District People’s Court.

13. The visa application was refused because it was considered that at the time of adoption on 23 November 2009, Ms Shi Lan Du was an Australian citizen residing in China.  Additionally that as a result of her Australian citizenship, Ms Shi Lan Du, was not a Chinese citizen.  Further that she undertook the adoption process as a Chinese citizen, without declaring her Australian citizenship or employing the adoption process as a foreign national.  As a result the adoption process was not considered to be lawful.  

14. For the reasons below, Miss Du was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Has the visa applicant turned 18 r.1.14(a)(i)?

15. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Miss Du was born on 24 June 2009 and is six years old.  As a result she had not turned 18, either at the time of application, or at the time of decision.   Accordingly r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.

    Does the visa applicant have a spouse or de facto partner – r.1.14(a)(ii)?

16. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.   There is no evidence before the Tribunal that Miss Du had a spouse or de facto partner at the time of application or at the time of decision.  Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Is the visa applicant a relative of an eligible person – r.1.14(a)(iii)?

17. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

18. At the time of application and at the time of decision Miss Du was the adoptive sister of Mrs Yao who is an Australian citizen.   Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    Can the visa applicant be cared for by a parent – r.1.14(b)?

19. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

20. Ms Shi Lan Du adopted Miss Du on 23 November 2009.  On 27 August 2010, Ms Shi Lan Du died.  Before her passing Miss Shi Lan Du had resided for twenty three years in Australia.  The Tribunal finds that at the time of application and at the time of decision Miss Du could not be cared for by her biological parents because they are unknown or by her adoptive mother because she had died.  Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Is the grant of the visa in the best interest of the visa applicant?

21. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. The evidence before the Tribunal is that Mrs Yao became the legal guardian of Miss Du and cared for during while Mrs Yao’s mother was alive and since Mrs Yao’s mothers death.  There is no evidence before the Tribunal to suggest that the grant of the visa would not be in the best interest of Miss Du.  Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    Is the visa applicant an orphan relative of an Australian relative?

22. Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl.117.211(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.117.211(b)). The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl.117.221.

23. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): r.1.03.  In the present case, Mrs Yao, is the relevant Australian relative.

24. The visa application was refused because of the following; at the time of adoption on 23 November 2009, Ms Shi Lan Du was an Australian citizen residing in China; as a result of her Australian citizen and because China does not allow dual citizenship, Ms Shi Lan Du, was not a Chinese citizenship; Ms Shi Lan Du undertook the adoption process as a Chinese citizen, without declaring her Australian citizenship or employing the adoption process as a foreign national.  As a result, the Department were not satisfied that the adoption process undertaken by Ms Shi Lan Du in the adoption of Miss Kaixin Du, was lawful in China. 

25. Mrs Yao provided the following evidence to the Tribunal; her mother adopted Miss Du after visiting Yichun City Social Welfare Institute in Jaingxi Province.  Her mother was attracted to the child and fell in love with her eyes.  Throughout the adoption process she answered all questions put to her by the local authorities.  At no time was she questioned about her Australian citizenship and she would not have realised that disclosure was necessary.  When her mother died she became Miss Du’s legal guardian.  She is responsible for the Miss Du’s care and remained in China to ensure that her needs are satisfied.  After her mother died she approached local authorities about the adoption and was advised that no changes would be made to the adoption.

26. Mr Gill who is Mrs Yao’s husband provided the following evidence to the Tribunal; that he and Mrs Yao have been responsible for Miss Du since Mrs Yao’s mother died.  This has meant that he and his wife have lived apart for almost six years.  They visit each other in China and Australia spending as much time as it is possible with each other on their visit.  At the time Mrs Yao’s mother adopted Miss Du she was approximately seventy four years old.  He didn’t know why she adopted a four month old at her age but thought that after visiting the orphanage she would have been moved to help in some way.  He didn’t believe that Mrs Yao’s mother would have realised the complexity of adoption or the necessity of disclosure of her Australian citizenship.  As far as he is aware Mrs Yao’s mother had answered the questions the local authorities had put to her truthfully.  He felt that primarily they sought evidence of her Chinese identification which she provided them.

27. Mrs Yao and Mr Gill agreed in their evidence they would live as a family with Miss Du in their home in Lane Cove.  They love her and care for her and will ensure that she has a good education.

28. Mrs Yao and Mr Gill provided evidence that there has not been any revocation of the adoption between Mrs Yao’s mother and Miss Du and Chinese authorities continue to consider the adoption to be completely legal in China.

29. The Tribunal considers Mrs Yao and Mr Gill to be credible.  Their evidence about the legality of the adoption of Miss Du by Ms Shi Lan Du, is consistent with evidence of the orders and statements by the Chinese government, as evidenced in documents provided to the Tribunal including; The People’s Republic of China, Registration of Adoption, which states that Ms Shi Lan Du’s adoption of Miss Du is found to be in conformity with the stipulations of law of adoption of the People’s Republic of China and that the adoption of Miss Du by Ms Shi Lan Du came into effect on the registration date of 23 November 2009 (refer: D1 f53 and f57).  There is no evidence before the Tribunal that the adoption has been revoked.  Rather the evidence before the Tribunal is that the adoption continues to be recognised as lawful by relevant authorities in China.  The Tribunal on the evidence before it finds that Miss Du is an orphan relative of Mrs Yao who is an Australian citizen.

30. Therefore the Tribunal is satisfied that, cl.117.211(a) is met at the time of application and continues to be met at the time of decision.

31. Given the findings above, cl.117.211 is met.

32. As the Tribunal finds that the visa applicant continues to satisfy the criterion in cl.117.211. It follows that cl.117.221 is met.

33. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

34. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Helena Claringbold

    
    

    Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)the applicant:

    (i)has not turned 18; and

    (ii)does not have a spouse or de facto partner; and

    (iii)is a relative of that other person; and

    (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.