1912564 (Migration)

[2020] AATA 6015

1912564 (Migration) [2020] AATA 6015 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912564

MEMBER:Margie Bourke

DATE:25 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 visa:

·cl.143.211, cl.143.212 and cl.143.213 of Schedule 2 to the Regulations.

Statement made on 25 November 2020 at 6:03pm

CATCHWORDS

MIGRATION – Contributory Parent (Class CA) visa – Subclass 143 (Migrant) visa – ‘adopted child’ – customary adoption – legal adoption not available under the PRC Adoption Law – parent of a settled Australian citizen – balance of family test – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5CA, 65

Migration Regulations 1994, rr 1.04,1.05, 1.14A; Schedule 2, cls 143.211, 143.212, 143.213

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the applicant a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 June 2015. The criteria for a Contributory Parent (Migrant) (Class CA) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The delegate refused to grant the visa on 18 April 2019 on the basis that the applicant did not meet the requirements of cl.143.211, cl.143.212 and cl.143.213 because the delegate was not satisfied that the applicant was the adoptive parent of the Australian sponsor.

4. The tribunal had regards to its objectives in providing a mechanism for review that is fair, just, economical, informal and quick, and had regard to the circumstances of the review. The tribunal considered it was appropriate to conduct the review by way of video hearing.

5. The review applicant attended the hearing by video on 17 November 2020 to give evidence and to present arguments.  The tribunal heard oral evidence from the visa applicant by telephone. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the review applicant was customarily adopted by the visa applicant within the meaning of r.1.04.

8. Cl.143.211 requires that the visa applicant is the parent of a settled Australian citizen, a settled Australian permanent resident, or a settled eligible New Zealand citizen.

9. Cl.143.212(1)  requires that the visa applicant is sponsored either by (2) the child of the applicant who has turned 18, or the child’s spouse, or (3) if the child has not turned 18, the child’s spouse who has turned 18 or a relative or guardian of the child, or a community organisation and the sponsor is a settled Australian citizen, a settled Australian permanent resident, or a settled eligible New Zealand citizen, or (4) the visa applicant is or was the holder of a subclass 173 visa and meets other requirements.

10. Cl.143.213 requires the visa applicant meets the balance of family test which in essence requires the number of eligible children (Australian citizens, Australian permanent residents usually resident in Australia, or eligible New Zealand citizens usually resident in Australia) equals or exceeds the number of ineligible children (resident overseas) of the parent.

    Personal History of the Review Applicant

11. I have considered the written and oral evidence and the country information available to me, and I am satisfied of the following circumstances of the family, birth and upbringing of the review applicant, [Ms A].

12. [Ms A]’s birth mother was the oldest of two sisters. (As the sisters have the same surname, in this decision record, for clarity, I will refer to the birth mother as either the birth mother or [Ms B], and the visa applicant as [Ms C]). [Ms B] was selected as part of the China rustication policy, which involved the compulsory mobilisation of urban youth, usually the eldest in the family, to rural areas, to work. According to Johnathon Unger, “Education Under Mao, Class and Competition in Canton Schools 1960-1980”, Columbia University Press, ch.8 Down to the Countryside urban high school graduates had been sent to rural areas during the 1960’s and in December 1968 Mao made further directions relating to urban youths being sent to rural areas. Millions of Chinese youths and young adults were rusticated – sent from large cities to rural areas over the 1960’s and 1970’s, and the government were aware it was a highly unpopular policy. Based on the household registration papers, [Ms A]’s birth mother married in the rural area of Anqing. [Ms A]’s parents had a rural hukou, or household registration.

13. I accept the evidence of the visa applicant [Ms C] that she felt indebted to her older sister for going to the rural area – because if her older sister had not been rusticated under the policy, then [Ms C] would have been required to go to the rural areas. After her birth mother finished breast feeding her at the age of [age], [Ms A] was sent to Shanghai, to be cared for by [Ms C].

14. [Ms A], as the first born of [Ms B], a rusticated female who had married in the rural area, was permitted to be returned to the urban family. This meant separation from her parents. [Ms A] was granted an urban hukou, or house registration. [Ms A]’s residential address was not with her birth parents.  Her identity as recognised by the family, the community and the state was as an urban child, living with her aunt and grandparents. I accept that as she had married a rural man, [Ms B] could not move from the rural area because of her marriage. I accept that policy permitted, and was a practice often followed, that the first born child of a married rusticated urban youth was returned to the child’s urban family to be raised by the urban family members.  This was considered to be preferable for the child from a financial and education position.

15. I am satisfied based on the oral and written evidence before me that the role of caring for [Ms A] as a child was carried out by [Ms C].  Initially as a baby she received some care from her maternal grandparents. [Ms C] continued to be employed, and before she turned two years, [Ms A] was placed in childcare and preschool while [Ms C] was at work. [Ms A] was enrolled in child care, preschool, primary school, middle school, high school and university in Shanghai based on her Shanghai hukou registration.

16. I accept that [Ms C] felt indebted to her sister for going to the rural areas under the rustication policy.  This sense of obligation cannot be overlooked.  By taking on responsibility for her sister’s child, [Ms C], had committed herself to raising a child in a country where a woman was at the time permitted to have only one child. I am satisfied that [Ms A] regarded [Ms C] as her mother, and had little or no contact with her birth mother for many years. I accept [Ms A]’s evidence that she was ‘abandoned’ by her birth mother, and even when [Ms B] came to Shanghai to visit the family, she did not treat her like a daughter.  I accept that [Ms A] considered [Ms C] to be her mother, since her arrival in Shanghai as a baby. I accept that the relationship between [Ms A] and [Ms C] was very close, and the relationship [Ms A] had with [Ms C] was closer than any other relationship she had.

17. I am satisfied that the first national adoption law in the People’s Republic of China, the PRC Adoption Law was enacted and came into effect in 1992. I am satisfied that the law reflected the previous recognised situation in relation to adoption.  Art 6 of the PRC Adoption Law states that adopters shall meet all the requirements of being (1) childless, (2) capable of rearing and education the adoptee child, and (3) have reached the age of 35.  Art 4 states that minors under the age of 14 years may be adopted. I am satisfied that [Ms A] was born in [year], and [Ms C] born in [year]. At the time [Ms A] was brought to Shanghai aged [age], [Ms C] was only [age] years of age. At that time [Ms C] would not have been eligible to legally adopt [Ms A].  Until [Ms C] turned 35 in [year], she was too young to formally adopt the child. Ten months after [Ms C] turned 35, the child [Ms A] turned [age], and became too old to be legally adopted.  At all relevant times [Ms C] was not married before [Ms A] turned [age], and not likely to be recognised legally as an adoptive parent.

18. In the article “Factors Affecting Adoption in China, 1950-87”, in Population Studies Vol 58, No 1, 2004, pp21-36 by Jihong Liu, Ulla Larsen and Grace Wyshak, records that the annual number of adoptions in China in the 1970’s was less than 200,000, and increased to 400,000 in 1984-86. This is a relatively low number for the population.  The article provides an assessment of Chinese adoption practices that records formal adoptions are undertaken to overcome childlessness, and to a lesser extent to achieve a child of a different gender for a married couple. There is no record of formal adoption being undertaken by family members taking over the responsibility of another family member’s child in the assessment in the article.

19. I am satisfied that [Ms A]’s birth mother had a second child, a daughter, who remained in the care of her mother. I accept the evidence that this child was brought to Shanghai by her mother (who had separated from her husband) in approximately 1995, and she attended middle school in Shanghai. I am satisfied that the younger child and [Ms B] lived in the same property as [Ms C] and [Ms A] and the maternal grandparents of [Ms A].  I accept that the home was established and ran essentially as two households at this time, and that [Ms B] did not resume any parental or maternal role or relationship in relation to her biological daughter [Ms A], and that [Ms C] and [Ms A] continued their parent – child relationship.

20. The evidence that is of concern to the tribunal is that [Ms C] legally adopted her sister’s younger child in [in] April 1997. I am satisfied that at the time [Ms C] was married in 1994, but the marriage was never consummated, the parties lived apart and the marriage was dissolved after a few years. [Ms C] and her husband both adopted the second child of [Ms B], based on the adoption certificate.  The consequence of the adoption is that the child, [Ms D], was granted urban hukou in Shanghai, and could continue her high school and tertiary studies there.  I have carefully assessed the evidence before me.  I accept the evidence of [Ms C] that she adopted [Ms D] at the request of her sister, to assist with the child’s education prospects, and so the child and her mother did not have to return to the rural areas in Anqing in order for [Ms D] to continue her education.

21. For the purposes of this review, I am satisfied that the legal adoption of [Ms D] by [Ms C] and her husband, does not mean that [Ms C] did not have the responsibility of another child; I accept she did have the responsibility and care of [Ms A]. Further I am satisfied that the care and responsibility of [Ms D] remained with her biological mother, and the adoption certificate was a formality only – done by [Ms C] out of obligation to her sister and for educational purposes and so [Ms D] had a Shanghai hukou.

    Assessment of Customary Adoption - Reg 1.04(2) of the review applicant

22. My analysis of the oral and written evidence, and country information available to me is that the review applicant [Ms A] and the visa applicant [Ms C] gave credible evidence to the tribunal. I am satisfied that the arrangements made by the [two sisters], to send the child aged [age] back to Shanghai, were arrangements made in accordance with the customs that developed around the rustication policy and the hukou registration. I accept that there were financial and educational benefits for [Ms A] to be brought up in Shanghai with an urban hukou, and separated from her parents. I accept that not in all cases was the arrangements so complete as to be interpreted as customary adoption, but I accept that in circumstances such as in this review it was a recognised custom that the child sent back to the urban family, became the child – the sole responsibility - of another family member.  I accept that the aunt, [Ms C] in accordance with the custom that developed around the rustication policy, assumed the role of adoptive mother, and the child [Ms A], that of the adoptee child.

23. I am satisfied based on the evidence before me that the child parent relationship between the adoptee child [Ms A], and the adoptive mother [Ms C] is significantly closer than any such relationship between the adoptee child [Ms A] and any other person.

24. I am satisfied that due to the age of the child, and the age and the single status of [Ms C] when [Ms A] was a child of [age] or under, legal adoption was not available under law.

25. I have considered the customary adoption arrangements were put in place in 1980, a period of over 35 years before the application for the visa was made. I am satisfied that the arrangements were not made to circumvent Australian migration requirements.

26. Therefore I find that [Ms A] is the adopted child of the visa applicant [Ms C], having been customarily adopted within the meaning of r.1.04(2). I am satisfied that [Ms A] is the child of the visa applicant [Ms C] within the meaning of s5CA of the Act. I am satisfied that [Ms A] is a child of her adoptive parent [Ms C] within the meaning of r.1.14A(2)(c).

    Assessment whether the visa applicant meets the criteria

27. Based on the evidence before me I am satisfied that [Ms A] came to Australia approximately twenty years ago, is an Australian citizen, her husband is an Australian citizen, she has two Australian born school age children and is in full time employment in Australia.  I am satisfied that [Ms A] is a settled Australian citizen.

28. I am satisfied that the visa applicant [Ms C] is the parent of a settled Australian citizen, and therefore meets the requirements of cl.143.211.

29. Based on the sponsorship form and the identity documents of [Ms A], I am satisfied that [Ms A] is aged over 18 years and is sponsoring [Ms C].

30. I am satisfied that the visa applicant is sponsored by the child who has turned 18 years, and therefore meets the requirements of cl.143.212.

31. For the reasons set out above, I am satisfied that the visa applicant has formally adopted [Ms D] in 1997, and customarily adopted [Ms A] in 1980. I am satisfied based on the evidence before me that [Ms D] resides overseas, and that [Ms A] is an Australian citizen.  I am satisfied that [Ms C] satisfies the balance of family test in r.1.05 as the number of eligible children is equal to the number of ineligible children. Based on the evidence before me I am satisfied that [Ms C] did not hold a subclass 173 or subclass 600 visa at the time of application.

32. I am satisfied that the visa applicant [Ms C] satisfies that balance of family test, and therefore meets the requirements of cl.143.213.

33. On the basis of the above findings, the visa applicant meets the requirements of cl.143.211, cl.143.212 and cl.143.213.

34. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the subclass 143 visa.

    DECISION

35. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 visa:

    ·cl.143.211, cl.143.212 and cl.143.213 of Schedule 2 to the Regulations.

    Margie Bourke
    Member