1600855 (Migration)

[2016] AATA 4132

1600855 (Migration) [2016] AATA 4132 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sumake Natcharoen

CASE NUMBER:  1600855

DIBP REFERENCE(S):  CLF2014/126966

MEMBER:Helena Claringbold

DATE:14 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Contributory Aged Parent (Temporary) (Class UU) visa.

Statement made on 14 July 2016 at 7:59am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 14 August 2014, Ms Sumake Natcharoen applied for a Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa under s.65 of the Migration Act 1958 (the Act). The application was made on the basis of her relationship with Mr Gumpanat Suwanjarat, her sponsor.

2. On 7 January 2016, a delegate of the Minister for Immigration refused to grant the visa because the delegate was not satisfied that Mr Suwanjarat is the adopted child of Ms Natcharoen.  As a result Ms Natcharoen did not satisfy cl.884.212.

3. Ms Natcharoen requested review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision record.  She appeared before the Tribunal on 29 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Suwanjarat. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department’s file CLF2014/126966, folios numbered 1-87B, and the Tribunal file 1600855, folios numbered   1-33 and the evidence at the Tribunal hearing.

6. The issue in this case is whether Mr Suwanjarat is the adopted child of Ms Natcharoen.

   BACKGROUND

7. Ms Natcharoen was born on 25 May 1942 in Thailand. She was previously married to Wises Natcharoen, who is deceased.  Her parents are deceased.  She has four siblings who reside in Thailand.

8. Mr Suwanjarat was born on 1 July 1977 in Thailand.  He is an Australian citizen.  His father, Suthirat Suwanjarat and mother, Jindamas Suwanjarat, were born in Thailand.

9. On 26 August 2013, Ms Natcharoen’s registration of Mr Suwanjarat adoption was registered at Muang Trang District.  At the time of registration Mr Suwanjarat was thirty six years old.

   The Tribunal hearing

   Ms Natcharoen’s evidence

10. Mr Suwanjarat began living with her in 1977.  At that time his biological parents were studying for their master degrees and they wanted to follow their career path. Initially, the biological mother, who is Natcharoen’s younger sister, placed Mr Suwanjarat in nanny care and day care, however this proved unsuccessful.  Ms Natcharoen was approached by her sister to care for Mr Suwanjarat and began caring for him in 1977.  When Mr Suwanjarat was young his parents visited him monthly, but as he aged these visits lessened.  There was no formal arrangement in place about Mr Suwanjarat care, rather an arrangement between the sisters.  Financial support for Mr Suwanjarat was provided by Ms Natcharoen, however if the biological parents wanted to provide financial support they could.  Additionally, the biological parents sometimes provided Mr Suwanjarat with money.  Previously the biological mother suggested that Ms Natcharoen adopt Mr Suwanjarat, but at that time she felt there was no need to do that.  The biological parents live in Bangkok and have intermittent contact with Mr Suwanjarat.

    Mr Suwanjarat’s evidence

11. He has lived with Ms Natcharoen since he was three months old.  She is the one who has been responsible for him on a daily basis.  When young he was told that Ms Natcharoen was not his biological mother and that his biological mother did not have the time to care for him.  He saw his biological parents infrequently and they, the visa applicant and another aunt shared some of the costs for his education.  There was no formal arrangement between his biological parents and the visa applicant and there are no formal papers.  On 26 August 2013, when he was thirty six years old his adoption by Ms Natcharoen was registered in Thailand.  The reason for the registration of adoption is to facilitate the transfer of land and property to him.  The relationship between him and Ms Natcharoen is that of mother and son. 

    Has the applicant been adopted?

12. Regulation 1.04 provides the definition for 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

13. (ii)      the arrangements have not been contrived to circumvent Australian migration requirements.

14. The evidence before the Tribunal is that Ms Natcharoen has cared for Mr Suwanjarat since he was three months old.  This familial arrangement was made after Ms Natcharoen’s younger sister approached her to take care of the boy.  Before his adoption on 26 August 2013, by Ms Natcharoen when he was thirty six years old no formal process was undertaken with regard to his care.  There is no evidence before the Tribunal that Mr Suwanjarat was adopted by Ms Natcharoen before he became eighteen years old.  As a result, the Tribunal is not satisfied that Mr Suwanjarat was adopted before he attained the age of 18 years and that Ms Natcharoen assumed a parental role in relation to the Mr Suwanjarat under any formal adoption process in any country.  As a result the Tribunal is not satisfied that Mr Suwanjarat is the adopted child of Ms Natcharoen as defined by regulation 1.04(1).

    Has the applicant been customarily adopted by the sponsor?

15. The evidence before the Tribunal is that legal adoptions were available in Thailand in 1977, when the arrangement between the sisters began.  Adoption laws commenced in Thailand with the Civil and Commercial Code 2477 (1934), which required that adoptions followed that code and be registered, according to Family Registration Act 2478 (1935). The Civil and Commercial 2477 (1934) and the Family Registration Act 2478 (1935) outlined processes in relations to adoptions in Thailand in 1977.  This was replaced by the Child Adoption Act 2522 (1979) which determines process for adoptions since that time.  In addition, Ms Natcharoen’s evidence is that she did not activate adoption prior to 26 August 2013, because she had not felt it was necessary.  The Tribunal is not satisfied that formal adoption was not reasonably practicable and available under the law of Thailand.   As a result the Tribunal is not satisfied that Ms Natcharoen has customarily adopted Mr Natcharoen. 

    DECISION

16. The Tribunal is not satisfied that Mr Suwanjarat is or has been formally adopted as defined by regulation 1.04(1) or informally adopted by Ms Natcharoen as defined by regulation 1.04(2).  As a result Ms Natcharoen does not satisfy cl.884.212.

17. For the reasons above, the applicant does not meet the criteria for a Subclass 884 visa.

    DECISION

18. The Tribunal affirms the decision not to grant the visa applicant a Contributory Aged Parent (Temporary) (Class UU) visa.

    Helena Claringbold
    Member