Bi (Migration)

[2018] AATA 1022

Bi (Migration) [2018] AATA 1022 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yaoying Bi

VISA APPLICANT:  Ms Xiaomei Bi

CASE NUMBER:  1700791

DIBP REFERENCE(S):  2014/087348

MEMBER:Helena Claringbold

DATE:6 March 2018

PLACE OF DECISION:  Sydney

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;

·cl.143.213 of Schedule 2 to the Regulations.

Statement made on 06 March 2018 at 2:25pm

CATCHWORDS

Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Balance of family test – Divorce – Child from a previous marriage – Formal adoption – Adoptive Relationship Certificate – Customary adoption

LEGISLATION

Migration Act 1958, s 5CA

Migration Regulations 1994, Schedule 2 cls 142.213, 143.213, r 1.04, 1.05

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 21 May 2014, Ms Xiaomei Bi, the visa applicant applied for a Contributory Parent (Migrant) (Class CA) Subclass 143 visa. The application was made on the basis of her relationship with Ms Yaoying Bi also known as Wang Yang, the sponsor and review applicant.  Mr Gaojun Wu, the visa applicant’s husband, is listed as a non-migrating spouse on the visa application.

2. On 23 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met the ‘balance of family test’. As a result, the visa applicant did not meet cl.143.213 of Schedule 2 to the Migration Regulations (the Regulations) of the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. On 6 February 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Xiaomei Bi and Mr Dapeng Wang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department’s case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the visa applicant can satisfy the ‘balance of family test’.

   Is the ‘balance of family test’ satisfied?

7. With a limited exception not applicable in the present case, cl.142.213 to the Regulations requires at the time of the application the applicant must satisfy the ‘balance of family test’, as defined in r.1.05.

8. Broadly speaking, an applicant will satisfy the ‘falance of family test’ if the number of his or her children lawfully and permanently resident (or eligible New Zealand citizens usually resident) in Australia is either: greater than or equal to the total number of children who are resident overseas or greater than the greatest number of children who are resident in any single overseas country: r.1.05(2).

9. ‘Children’ for these purpose includes a child or step-child of (1) the parent; (2) the parent’s spouse or de facto partner; or (3) the former spouse or de facto partner of the parent, if the child was born or adopted before or during that relationship: r.1.05(1)(a). If the whereabouts of a child of the applicant is unknown, the child is taken to be resident in the usual country of residence of the applicant: r.1.05(1)(b). However, no account is to be taken of children specified in r.1.05(3). 

10. Regulation 1.05 (3) defines that in applying the balance of family test, no account is to be taken of a child of the parent:

    (a)      if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent…..

11. ‘Child’ includes an adopted child: s.5CA. Adoption is defined in r.1.04: A person is taken to have been adopted by another person if, before the adoptee turned 18, the adopter assumed a parental role under formal adoption arrangements (where the persons recognised as parents cease to be recognised and the adopter becomes recognised) (‘formal adoption’), or other arrangements entered into outside Australia made in accordance with usual practice or recognised custom (‘customary adoption’) in circumstances where, among other things, the Minister is satisfied that formal adoption was not available or reasonably practicable and 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

12. Xiaomei was born in China in 1959.  In October 1981, she married Mr Weizhong Wang.  There are two children from this relationship, Ms Yaoying Bi and Mr Dapeng Wang.  In July 1989, the applicant and Mr Wang divorced. The applicant went onto marry Mr Wu.  Mr Wu’s son and the applicant’s step-son is Mr Mingliang Wu. A letter dated 4 August 2014, from the Daoli Branch, Harpin Public Security Bureau stated that because of work requirements, Mr Wu cannot emigrate with his wife for five years.  Xiaomei told the Tribunal that Mr Wu retired from his position in December 2017.  She said he was not migrating at this time because he needed to care for his aging parents.

13. Yaoying, was born in 1985; she is the biological daughter of the Xiaomei. She is an Australian citizen and her usual country of residence is Australia.

14. Dapeng, was born in 1982; he is the biological son Xiaomei. He is not an Australian permanent resident or Australian citizen or eligible New Zealand citizen. His usual country of residence is China.

15. Mingliang, was born in 1982; he is Mr Wu’s biological son and the step-son Xiaomei. He is not an Australian permanent resident or Australian citizen or eligible New Zealand citizen. His usual country of residence is China.

16. Xiaomei’s biological son, Dapeng and step-son, Mingliang, are usually resident in China. Therefore they are not eligible children for the ‘Balance of Family Test”. Xiaomei has one biological daughter, Yaoying, who is an Australian citizen usually resident in Australia.  Therefore she is eligible for the ‘balance of family test’.  On this evidence, Xiaomei does not satisfy the ‘balance of family test’ because she has a greater number children who are usually resident in China than in Australia. 

17. The Tribunal will go onto consider the claims that Dapeng should not be consider against the ‘balance of family test’.  Xiaomei told the Tribunal that when she and Weizhong divorced Dapeng was placed under Weizhong’s control.  She stated that although she tried to see Dapeng from time to time family circumstances made this difficult.  She said that after the

18. ‘The People’s Court of Zhaodong City’ ‘Paper of Civil Judgement’ dated 20 July 1989 records the divorce between the applicant and Weizhong. It also records that Dapeng shall be raised by Weizhong and Yang shall be raised Xiaomei.  Other information is that Weizhong died in 2005.

19. Other information is that Dapeng went to live with Weizhong’s sister, Ms Min Wang and her husband, Mr Haishan Yu and they adopted Dapeng in 1989. This information is challenged by Xiaomei who claims that Dapeng was not adopted. An ‘Adoptive Relationship Certificate’ (ARC) dated 6 December 2016 stated that the adoptive laws of the People’s Republic of China were not implemented until 1 April 1992.  It also stated that Dapeng’s adoptive relationship was established in 1989. Xiaomei told the Tribunal that the ARC was issued at her request and after she provided the relevant information to authorities.

20. Third party statements describe the relationship history between Dapeng and Xiaomei. These statements are from Min, Yaoying, Ms Xiaomei Bi, Dapeng; Ms Yi Qin Land and Yujie Zhang. Other documents provide information about Dapeng’s education and household registration and record Min and Haishan as Dapeng’s parents.

    Has Dapeng been formally adopted?

21. China codified its adoptions laws and regulations in the Current Adoption Law of China on December 29, 1991, which came into force on April 1, 1992. Under this law, a Notarial Adoption Certificate was required in all adoption cases, and the inability to obtain a Notarial Adoption Certificate was prima facie evidence no adoption ever took place. Adoptions taking place after January 1981 and before 1 April 1999 are considered valid only with the issuance of a Notarial Adoptions Certificate. For adoption cases initiated during this period, the date of issuance of the Notarial Adoptions Certification, serves as the effective date of adoption. [1]

    [1] ‘China Reciprocity Schedule’ (undated), US Department of State website - Accessed 19 May 2008.

22. The Tribunal’s conclusion is essentially based on the evidence that there was no petition for adoption or court order for adoption, so there was no formal adoption in 1989.  The evidence in support of that finding includes the information that adoption laws in China were not implemented until 1 April 1992. Even if the Tribunal accepted the ‘Adoptive Relationship Certificate’ as evidence of adoption the certificate is dated 6 December 2016 which is issued after the date of the claimed adoption in 1989 and after the time of application for the visa.

23. Having considered the evidence, individually and as a whole, the Tribunal is not satisfied that Dapeng was formally adopted in 1989 or at the time of the visa application.

    Has Dapeng been customarily adopted?

24. The Tribunal was told that from the age of six years, Dapeng lived with Min and Haishan as their son and they supported him in every aspect of his life.  Probative information supports that since 1999, Dapeng is recorded as Min and Haishan’s second son. While a record of education document from 1988 to 1999 records Min and Haishan as Dapeng’s mother and father. 

25. Dapeng told the Tribunal that neither of his biological parents wanted him and they gave him away.  He said that as far as he is concerned his parents are Min and Haishan.  He has lived with them as their son from the age of six years old. Dapeng’s evidence was spontaneous, strong and moving. It is obvious to the Tribunal that he has feelings of animosity towards Xiaomei. It is also evident that the relationship between Dapeng and Xiaomei is fractured.

26. Other probative information before the Tribunal is that, prior to the Current Adoption Law of 1992, customary adoption took place in China in 1989. This evidence, when considered alongside the third party statements and the credible evidence provided by Xiaomei Dapeng and Yaoying during the Tribunal hearing led the Tribunal to be satisfied that Dapeng was customarily adopted in 1989.  It is also satisfied that these adoptions 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 the child-parent relationship between the Dapeng, the adoptee and the Min and Haishan, the adopters 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 which began in 1989; the Tribunal is satisfied that: formal adoption was not reasonably practicable in the circumstances; and the arrangements have not been contrived to circumvent Australian migration requirements. The Tribunal is satisfied that Dapeng was customarily adopted by Min and Haishan in 1989.

27. The result of the above finding is that Dapeng is not considered to be Xiaomei’s child for the purposes of the ‘balance of family test’. As a result, Xiaomei is considered to have two children for the purposes of the ‘balance of family test’.  Mingliang, who is usually resident in China and Yaoying who is usually resident in Australia and is an Australian citizen.  The Tribunal is satisfied that the number of Xiaomei’s children who are lawfully and permanently resident (or eligible New Zealand citizens usually resident) in Australia is equal to the total number of her children who are resident overseas, or greater than the greatest number of children who are resident in any single overseas country: r.1.05(2).

28. As a result the visa applicant meets Regulation r.1.05(2) and satisfies cl.143.213 of Schedule 2 to the Regulations.

29. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 143 visa.

    DECISION

30. 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;

    ·cl.143.213 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member

    
    

    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

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