2014487 (Migration)

[2021] AATA 2482

2014487 (Migration) [2021] AATA 2482 (8 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014487

MEMBER:David Barker

DATE:8 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) Subclass 102 visa.

Statement made on 08 June 2021 at 2:20pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – agreement with brother to adopt nephew – common practice in culture – formal approval by authorities in home country – child raised by grandparents while sponsor in Australia – sponsor’s misunderstanding of requirement to live offshore for 12 months before making application – residence and work in Australia and regular trips to home country – legislation unclear whether residence offshore must be continuous – recommendation that sponsor considers requesting ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 102.211(2)(b)(ii)

CASES
Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164
Inland Revenue Commissioners v Lysaght [1928] AC 234
Keil v Keil [1947] VLR 383
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Nguyet Huong Phung v MIEA (1997) 74 FCR 422

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 on 28 August 2020 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 (hereafter referred to as the applicant) applied for the visa on 13 August 2019. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 102.211(2) under Schedule 2 of the Migration Regulations (the Regulations).

3. The review applicant (hereafter referred to as the sponsor) appeared before the Tribunal on 13 May 2021 by video conference utilising the MS Teams platform, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s biological father, who is the brother of the sponsor. 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.

   BACKGROUND

5. The sponsor is an Australian citizen and is [Age 1] years of age. She was born in [Country 1] and came to Australia from Vietnam in March 2005 on a Subclass 136 Skilled – Independent visa, granted 8 February 2005, and was subsequently granted Subclass 155 Resident Return visas in January 2010 and August 2015. She was granted Australian citizenship in June 2016.

6. The applicant is a national of Vietnam and is [Age 2] years old, and his biological father is the younger brother of the sponsor.

7. The sponsor gave evidence at hearing that she has had contact with the applicant from around the time of his birth. She told the Tribunal that she has a number of younger siblings, all of whom have children, and that she and the applicant’s parents reached a mutual agreement that she would adopt the applicant. She indicated that this was in response to the strong bond that exists between her and the applicant, as well as his demonstrable intelligence and the wish that he be provided with the life opportunity that growing up in Australia may provide him. The sponsor indicated that unlike her siblings, she has not had children of her own and that this was a further factor taken into account when she and the applicant’s parents decided to proceed with the adoption. The applicant’s father provided consistent oral evidence at hearing with respect to these factors. The sponsor reports that she comes from a close and loving family and that there is nothing untoward or unusual about these arrangements. She and her brother, the biological father of the applicant, gave evidence at hearing that the adoption of a child by a sibling of the child’s biological parents who may provide the child with greater life opportunities is not an unusual practice in their Vietnamese culture.

8. The sponsor explained that she had some difficulty finding work as an [Occupation] after she came to Australia on the skilled visa, and when the Vietnamese economy opened up to the extent that a stock exchange opened, she returned there in [Year 1] to work for a period of time. She said that the applicant was born during her time working there. She said that she returned to Australia in [Year 2], but due to the impact of the global financial crisis she had difficulty finding secure work locally. She was successful in gaining secure work with [a major Australian company]. The position was however with [a division of the company in Vietnam], where she held the position of [Job position]. The sponsor indicated that after having returned to Vietnam, she commenced the process of having her adoption of the applicant formally approved by the Vietnamese authorities. The Tribunal has reviewed a Decision on Recognition of Adoption, issued by [Ward], District 1, Ho Chi Minh City, dated [January] 2010, which shows the sponsor adopted the applicant on this date. This document shows his mother as the sponsor. His Extract of Change of Civil Status, dated [April] 2018, shows his mother as the sponsor. He appears on the Household Register of the Sponsor. His Extract of Birth Certificate on file shows his mother as the sponsor.

9. The sponsor gave evidence that in or around early 2011, her employer decided to consolidate their South East Asian business interests in [Country 2] and offered the applicant the opportunity to relocate there. She said that she instead decided to return to Australia, which she did in August 2011. She said that her intention was to settle into her career in Australia and establish a positive, stable living situation before bringing the applicant to join her in Australia. She gave evidence that she had no concern with regard to the applicant’s welfare, as he lived with his maternal grandparents and had regular contact and support from his biological parents. The sponsor said that she visited the applicant regularly, during her annual leave, in the period since she returned to Australia until such travel was restricted by the onset of the coronavirus pandemic.

10. The sponsor gave evidence at hearing that she did not understand the technical requirements associated with the Subclass 102 Adoption visa and the requirement she be offshore from Australia for a 12‑month period immediately before the application is lodged. This is consistent with information the sponsor gave the Department when asked to provide further information in support of the application. In a letter from her, dated 26 August 2020, the sponsor explained that she worked in Vietnam from October 2008 until May 2011 before moving to work in [Country 2]. She said that she had adopted the applicant in January 2010 and moved back to Australia in August 2011 to find a stable job and settle down before bringing the child over. She said that she had mistakenly thought that she could reside outside of Australia for 12 months after adopting the child and prior to lodging the child’s visa application, and she had not been aware that she was required to reside outside of Australia for 12 months immediately prior to lodgement.

11. The sponsor gave evidence at hearing that it is quite evident that she has spent more than 12 months offshore since she was granted permanent residency in Australia and significantly more than 12 months prior to when the applicant’s adoption was approved. She contended that the evidence demonstrates she had contact and provided support to the applicant for years before the adoption was formalised, and that there is a close and enduring connection between her and her adoptive son.

12. The sponsor indicates that she at present has secure employment with [Employer] and lives by herself in her home in [Suburb], NSW. She indicated that whilst she has some relatives in Australia they reside in Western Australia and that she has no relatives in NSW. The sponsor indicated that whilst she wishes to continue to live and work in Australia, she would need to consider relocating to Vietnam if the applicant’s visa is refused so that she could be reunited with her adoptive son.

13. The sponsor’s movement records since gaining permanent residency in Australia are as follows.  The Tribunal did not  consider it necessary to put details of all of these movements to the applicant  under the provisions of s.359A of the Act, as they are consistent with her evidence at hearing  as to the overall extent of her trips offshore to Vietnam; and in particular her evidence at hearing regarding her time offshore since she returned to Australia in 2011. 

    Departure from Australia                   Return to Australia

    [04]/2005  [04]/2006

    [07]/2006  [06]/2007

    [07]/2007  [09]/2007

    [10]/2007  [01]/2008

    [01]/2008  [06]/2008

    [09]/2008  [08]/2011

    [01]/2012  [01]/2012

    [08]/2012  [08]/2012

    [02]/2013  [03]/2013

    [03]/2014  [04]/2014

    [08]/2015  [09]/2015

    [12]/2016  [01]/2017

    [12]/2017  [01]/2018

    [03]/2018  [04]/2018

    [12]/2018  [12]/2018

    [07]/2019  [08]/2019

    [11]/2019  [12]/2019

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The sponsor presented her oral evidence at hearing in a calm, straightforward and credible manner. The Tribunal has noted a high degree of consistency between the oral evidence received from her and her brother and the documentary evidence available from the Departmental and Tribunal files. The Tribunal is satisfied that the sponsor is a witness of truth and that evidence provided by her is reliable and can be given weight accordingly.

15. The issue in the present case is whether subclause (2) of cl 102.211 is met.

16. Clause 102.211(2) relevantly states:

    (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.

17. Clause 102.211(2)(b)(i) requires that the visa applicant was adopted overseas by a person who was at the time of the adoption an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal is satisfied that at the time of the adoption, the sponsor was an Australian citizen. Therefore, the requirement in cl 102.211(2)(b)(i) is met.

18. For cl 102.211(2)(b)(ii) to be met, the applicant must have been adopted by a person who had been residing overseas for more than 12 months at the time of the application. There is no requirement that the residence overseas be in a single country, merely that the person be ‘residing overseas’ for the requisite period, nor is there a requirement that the residence be in the country where the adoption took place. The Tribunal is aware that it is not entirely clear whether cl 102.211(2)(b)(ii) requires 12 months continuous residence overseas. In Nguyet Huong Phung v MIEA,[1] the Court considered a similarly worded, previous version of the provision which required that the applicant be ‘a child who has not turned 18 adopted by an Australian citizen … where: the adoptive parent has been residing overseas for more than 12 months at the time of the application …’ The Court held that this required the 12 months or more to be prior to the time of application and it was not sufficient if the adoptive parent has had, at some earlier time, a period of more than 12 months overseas residence.

    [1] Nguyet Huong Phung v MIEA (1997) 74 FCR 422.

19. The meaning of residence was considered by the High Court in the taxation case of Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation .[2] Justice Williams, with whose reasons Rich ACJ and McTiernan J expressed agreement, made the following observation regarding residence:

    The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode. [3]

    [2] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241.

    [3] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241 at 249.

20. In Hafza v Director General of Social Security[4] the Court held that the concept of residence includes two elements: ‘physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever.’

    [4] Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164.

21. The Tribunal has considered the adoption documents and the application for the visa and is satisfied that the adoption of the applicant was approved by the relevant authorities in Vietnam [in] January 2010, and the application for the visa was made on 13 August 2019. The Tribunal accepts the evidence of the sponsor that she returned to Australia in August 2011 after the adoption process due to changes in her employment circumstances and in order to consolidate her career and the future living arrangements for her and the applicant in Australia.  The Tribunal is satisfied that since that time the sponsor  has maintained her usual place of residence in Australia, albeit with relatively brief trips back to Vietnam on at least an annual basis. The Tribunal is satisfied that these trips were to maintain meaningful connection with her adoptive child and other relatives, but is not  satisfied this constituted the maintenance by the sponsor of a home in two locations simultaneously, as may in some circumstances be seen to be the case[5].  In forming this view, the tribunal is satisfied that Australia was, from  August 2011 where the sponsor maintained her abode, held employment and had the intention to provide a home  for her and her adoptive child.

    [5] Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383)

22. Whilst acknowledging a degree of ambiguity exists with regard to cl 102.211(2)(b)(ii) and that whether or not the adoptive parent had been residing overseas for more than 12 months at the relevant time will be a factual matter for the Tribunal to decide, it is appropriate for the Tribunal to take judicial guidance. In the view of the Tribunal, in Nguyet Huong Phung v MIEA the Court implies that it is necessary to consider whether the 12 months overseas residence occurred immediately prior to the time of application.

23. In quantum, the sponsor has spent substantially more than 12 months offshore from Australia since she was granted  permanent residence here.  However, the Tribunal finds that she was not residing overseas from Australia for more than 12 months at the time of application on 13 August 2019. Unfortunately, this results in the Tribunal determining cl 102.211(2)(b)(ii) is not met and as a consequence the required time of application criteria in cl 102.211(2) is not satisfied.

24. As the applicant must meet the requirement of subclause (2), the applicant does not meet the criterion of cl 102.211. Accordingly, the Tribunal finds that the applicant does not meet the criteria for a Class AH Subclass 102 visa.

25. There is no suggestion that applicant is eligible for the other subclasses of Class AH: Subclass 101 (Child) visa and Subclass 117 (Orphan Relative) visa.

    Ministerial intervention

26. During the hearing, the Tribunal expressed a provisional view that the applicant may not be able to meet cl 102.211(2)(b)(ii) and invited the sponsor to consider whether this is an appropriate matter to refer to the Minister for consideration that a favourable decision be substituted pursuant to the powers in s 351 of the Act. The sponsor indicated that she would bear this possibility in mind as an option she and the applicant could consider if required once they received the Tribunal’s decision.

27. In extending this invitation, the Tribunal was mindful of the unfortunate circumstances of this case, where there appears no doubt as to the genuine nature of the enduring relationship between the sponsor and her adoptive son. The Tribunal acknowledges the distress that would be experienced by both mother and son because of their forced separation, particularly in the context of the added stressor of the coronavirus pandemic. The Tribunal considers that it would be a most unfortunate outcome if both the Australian economy and wider society was to lose the benefit accruing from the sponsor’s residence in Australia, in the event she felt it necessary to relocate to Vietnam on a permanent basis in order to be reunited with her adoptive child.

28. In the view of the Tribunal, this is a situation that would benefit from a resolution that is in the interests of the applicant, sponsor, and more broadly, the Australian community. The Tribunal recommends the parties consider requesting the Minister to personally intervene in this matter.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) Subclass 102 visa.

    David Barker
    Member