1507876 (Migration)

[2016] AATA 4328

1507876 (Migration) [2016] AATA 4328 (30 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Meiling Huang

VISA APPLICANT:  Ms Xi Huang

CASE NUMBER:  1507876

DIBP REFERENCES:  2013024064224; OSF2014/003362

MEMBER:Rosa Gagliardi

DATE:30 August 2016

PLACE OF DECISION:  Melbourne

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 101 (Child) visa:

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

·cl.101.211 of Schedule 2 to the Regulations.

Statement made on 30 August 2016 at 10:58pm

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 March 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 7 October 2014. 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(1)(c) and Regulation 1.04 (Adoption).

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because it was considered that the applicant was adopted as she did not meet the requirements of Regulation 1.04.

5. The review applicant appeared before the Tribunal on 8 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

8. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   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.

9. Dependent child is given the following meaning in the Regulations (r.1.03):

   dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

   (a)  has not turned 18; or

   (b)  has turned 18 and:

   (i)  is dependent on that person; or

   (ii)  is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

10. Dependent is defined as:

    Reg 1.05A  Dependent

    (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)  at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person  for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

11. The sponsor is an Australian permanent resident who is now married to an Australian citizen.  She had previously been married to a Chinese national and in May 1986 the couple gave birth to their biological son, Hong Qu.

12. On 1 July 1992 the visa applicant was abandoned as an infant on the sponsor’s doorstep and the child was customarily adopted.  In the absence of any identifying documents, 1 July 1992 was taken to have been the applicant’s date of birth as reflected in her passport and national identity card sighted by the Tribunal.  It is claimed that since that day the sponsor has cared for the applicant as her own child. The applicant is now 24 years of age.

13. The sponsor separated from her former husband on 30 December 1996 and she later remarried.  She was granted a Partner visa on 12 September 2014.  On 8 September 2005 the sponsor’s former husband passed away.  The sponsor claims she did not include the applicant in the application at that stage because she could not provide an adoption certificate due to the laws in China.  The migration agent asserts that the applicant was not included due to her studying at the time.

14. The critical points are:

    ·     Several months prior to the applicant being found on the doorstep of the sponsor, the Adoption Law of the People’s Republic of China came into force.  Article 6 reads:

    -   

    Adopters shall meet simultaneously the following requirements:

    
    

    (1) childless;

    
    

    (2) capable of rearing and educating the adoptee; and

    
    

    (3) having reached the age of 35.

    -   At the time the applicant was customarily adopted the law forbade the sponsor from formally adopting her on the basis that the sponsor was neither childless as she already had her own son, nor had she reached 35 years of age.  The sponsor was only 32 at the time;

    -   Shortly after the child was abandoned at the home of the sponsor, when she would have been roughly one month old, the applicant was taken by the sponsor to a doctor in in the Hospital of Lianjiang County on 4 July 1992 and was hospitalised for a week due to a neonatal respiratory tract infection.  A certificate issued by the Hospital of Lianjiang County confirming hospitalisation of the applicant during July 1992 has been submitted;

    -   The Adoption Law of China changed in 1998, when the applicant was 7 years of age.  The change included lowering the age of prospective adoptive parents from 35 to 30 enabling a greater proportion of the population to lawfully adopt children.  However, Article 6 of the Adoption Law of 1998 retained the requirement for   adopting parents to be “childless”.  The sponsor could still not meet the  requirements because she had a son;

    -   Country information suggests that the 1998 amendments to the Adoption Law represented a minor relaxation to the one child policy’ but only in so far as it permitted parents who already had children of their own to adopt abandoned children from social welfare institutions if their parents could not be located.[1]  As clearly the applicant was not adopted from an institution, the childless policy was still a requirement and an impediment for the sponsor in terms of adopting the applicant;

    [1] Wang, L.K. “Children on the Margins: The Global Politics of Orphanage Care in Contemporary   China”, US Berkley Electronic Theses and Dissertations, 2010, pg.52, courtesy of the applicant’s migration agent.

    -   In 1998 the sponsor paid the RMB 10,000 fine for an “extra birth” under China’s one child policy at the time to enable the applicant to be enrolled in primary school (Tribunal has sighted receipt for Extra Birth Fee Levied in Lianjiang County);

    -   Students’ Status Card for Full-time Primary School of Nine-year Compulsory Education listing the sponsor as a main family member, September 1999 has been submitted;

    -   The Fifth Population Census of China in 2000 allowed for an amnesty on unregistered births [2] and the sponsor formally registered the applicant’s birth on the household/family register (hukou);

    -   September 2005 the applicant commenced middle school and the sponsor is recognised as the applicant’s mother and the applicant as belonging to the household with the applicant’s former spouse and their biological son.  The sponsor has supplied Students’ Status Card of Huang Rulun Middle School of Fuzhou Province which had been compiled in September 2005;

    -   September 2008 the applicant begins attending high school Lianjiang Huaqiao Middle School of Lianjiang County of Fuzhou City.  As per previous Students’ Status Card, the applicant’s family includes the sponsor as her mother, Card compiled in September 2008 and sighted by Tribunal;

    -   Applicant begins attending Ningde Normal University studying Applied Chemistry from September 2011.  Graduation Certificate for General High Education has been submitted indicating the applicant had completed the full-time undergraduate course in June 2015;

    -   The applicant completed several other courses including: Computer Certificate (March 2013); and Certificate for “Pedagogy & Psychology” (date unclear);

    -   On 12 September 2014 the sponsor’s Partner visa was granted and she travelled to Australia on 5 December 2014;

    -   The applicant’s Child (Subclass 101) visa application was lodged on 7 October 2014 when the applicant was 22 years of age;

    -   The applicant continues to live in the house owned by the sponsor in China; and

    -   On 7 September 2015 the applicant starts her English training course at Global IELTS School and is awarded her Certificate on 8 July 2016.

    [2] First Impressions of the 2000 Census of China, November 4, 2001, courtesy of migration agent.

15. The Tribunal has sighted evidence of the sponsor’s former husband having been de-registered from the Family Registration due to death via an accident although no death certificate has been submitted and the Tribunal would encourage the sponsor to make this available to the department.  For the purposes of this review, however, the Tribunal accepts that the father who is considered the applicant’s adoptive parent is deceased and died in 2005 as the Tribunal does not have reason to believe that the sponsor has provided false documents in respect of the Family Registration and indeed any other documents.

16. The Tribunal considers that making findings of fact in relation to the applicant’s adoptive father is important vis-à-vis whether if he were still living he would have legal rights in terms of whether the applicant is permitted to travel outside Australia.  For the purposes of this  review, however, this is not in contention.  It also raises questions as to whether the applicant’s reliance on the sponsor is greater than on any other person, or source of support, for financial support.

17. The department did not make any findings in terms of the issue of dependency but the Tribunal accepts from the evidence that the sponsor and her former husband, until his passing, had taken in the applicant to care for her as their own and that they provided for her, until the sponsor continued to care for the applicant as a single mother.  The Tribunal is not just relying on the credibility of the sponsor which in this regard was compelling, but also on the documentation submitted in support of the claims which are also consistent and show a continuity of care by the sponsor until currently.  The issue for the Tribunal to decide is whether in the absence of a legal adoption by the sponsor of the applicant, the applicant can still meet the requirements for adoption.

18. As there is no suggestion that the applicant is the biological child or stepchild of the sponsor, cl.101.211(1)(c)(ii) is applicable. 

19. Regulation 1.04 sets out these requirements. 

    Reg 1.04  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.

20. Notwithstanding the sponsor’s attempts to obtain a formal adoption certificate, the Tribunal accepts that the Adoption Laws of China as set above did not permit the sponsor to adopt the foundling even though she raised the child since she was a new born infant.  At the time the sponsor was not yet an Australian permanent resident. On the basis of the documentary evidence before it, the Tribunal accepts that the sponsor took on the parental role of the applicant in July 1992.  The Tribunal is also satisfied that the applicant’s biological parents have had no role, either financially or emotionally in the support and raising of her.  The photographic material as well as other probative evidence as set out above, supports this claim.

21. The Tribunal has carefully considered the question of whether or not the applicant was customarily adopted by the sponsor.

22. 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)).  Furthermore, this country information shows that the abandonment of female children, particularly of infants, has a long history in China.[3]

    [3] Courtesy of migration agent.

23. Based on the material before it the Tribunal is also satisfied that the child-parent relationship between the applicant and the sponsor is significantly closer than any such relationship between the applicant and any other person or persons (r.1.04(2)(b)).

24. As formal adoption is available in China the Tribunal has considered whether or not formal adoption was not reasonably practicable in the circumstances.

25. As noted above in respect of China’s adoption laws, while in theory they have permitted adoption throughout the rearing of the applicant, the sponsor’s circumstances and characteristics in being under 35 years of age and not being childless, in practice precluded adoption.  While the laws were relaxed somewhat, the continuing impediment to formal adoption was that the sponsor had to meet the childless requirement which she could not meet due to her having a biological son.  Accordingly the Tribunal finds r.1.04(2)(c)(i) is satisfied as formal adoption was not reasonably practicable in the circumstances.

26. Given that the Tribunal is satisfied of the history of the customary adoption which  is strongly supported by documentation over the length of the adoption, the Tribunal is also satisfied that the arrangements have not been contrived to circumvent Australian migration requirements (r.1.04(2)(c)(ii)).

27. The Tribunal finds that the visa applicant is customarily adopted by her sponsor. It follows that cl.101.211(1)(c) is satisfied.    

28. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

29. 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 101 (Child) visa:

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

    ·cl.101.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …