2100359 (Migration) - [2024] AATA 1221

2100359 (Migration) [2024] AATA 1221 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Dai (Karen) Vo (MARN: 0635245)
CASE NUMBER:  2100359
MEMBER:Margie Bourke
DATE:9 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 09 May 2024 at 8:19am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent children of an Australian citizen – visa applicant is the sponsor’s biological child – adoption by sponsor’s sister claimed to have ceased – formal adoption under Vietnamese law – money transfers – current application to terminate adoption – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.221; rr 1.03 - 1.05
CASES
Huynh v MIMA [2006] FCAFC 122
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 30 December 2019. 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).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.211 which requires the visa applicant is a dependent child of an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, has not turned 25 at the time of application (or is a dependent child within the meaning of reg 1.03 (b)(ii) which defines dependent child), and is either the child (other than an adopted child) or the stepchild of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen, or was adopted overseas by a person who at the time of adoption was not an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, holder of a permanent visa for an eligible New Zealand citizen.
The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate found the visa applicant was legally adopted in Vietnam by Vietnamese citizens, and was not the dependent child of an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen, and was not the dependent child therefore of the sponsor (the review applicant).
The review applicant appeared before the Tribunal on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2100359 (Migration)

Details

AGLC: 2100359 (Migration) [2024] AATA 1221
Case: [2024] AATA 1221
Decision Date: 9 May 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the review applicant sought to establish that the visa applicant was his biological child. The visa applicant had been formally adopted in Vietnam in 2011 by the review applicant's sister and her husband. The review applicant contended that despite the formal adoption, the visa applicant remained his biological child and that the adoption had effectively ceased under Vietnamese law, supported by evidence of money transfers and the visa applicant's continued recognition as his biological child. The Department had previously decided that the legal adoption remained in effect, meaning the visa applicant was considered the child of the adoptive parents and not the review applicant.

The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 101 visa, specifically whether she was a "dependent child" of an Australian citizen at the time of application and decision, and whether she was the biological child of the review applicant, or an adopted child in a manner that satisfied the visa requirements. The core of the dispute centred on the legal effect of the Vietnamese adoption and whether it had ceased to be in force, thereby re-establishing the biological parent-child relationship for migration purposes.

The Tribunal affirmed the decision not to grant the visa. It applied the criteria in clause 101.211 of the Migration Regulations 1994, which requires the visa applicant to be a dependent child of an Australian citizen and, relevantly, to be the child (other than an adopted child) of that citizen. The Tribunal found that while the review applicant was recognised as the visa applicant's biological parent after the adoption, the formal legal adoption under Vietnamese law was still in effect. Consequently, the visa applicant was legally considered the child of her adoptive parents, not the review applicant, and therefore did not meet the criterion of being the biological child of the sponsor. The Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEDependent child criteria 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). The review applicant lodged the application on the basis that he is the biological parent of the visa applicant, and that he provides financial support for the visa applicant and that she is aged under 18 years. The review applicant provided documents confirming the visa applicant had been adopted by his sister and his sister’s husband in 2011, and the review applicant provided documents which he claimed were evidence that in Vietnam the visa applicant had been recognised as his biological child and therefore the adoption had ceased and no longer was in effect at the time of application for the visa, and after the application for the visa. The decision of the Department, dated 13 November 2020 concluded that whilst the review applicant was recognised as the visa applicant’s biological parent after the adoption, the legal adoption of the visa applicant was still in effect and therefore the visa applicant was taken to be the adopted child of the review applicant’s sister and her husband, and not the child of the review applicant. Clause 101.211(1) states 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 stepchild within the meaning of paragraph (b) of the definition of stepchild; 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.(2) paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The definition of dependent child in reg 1.03 is as follows: - dependent child, of a person, means the child or stepchild 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.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Margie BourkeMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.…

Ratio Decidendi

Legal Principle Established

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