Charoenchai (Migration)

[2022] AATA 873

Charoenchai (Migration) [2022] AATA 873 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Watchara Charoenchai

VISA APPLICANT:  Master Nathepat Thanasakjitti

REPRESENTATIVE:  Mr Chaofeng Guan (MARN: 0001896)

CASE NUMBER:  2015276

DIBP REFERENCE(S):  2019001183

MEMBER:Kira Raif

DATE:13 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2022 at 5:19pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa –Subclass 102 (Adoption) visa – sponsor is not named as an adoptive parent of the visa applicant – only the sponsor’s partner appears on the adoption certificate – adoption was registered well after the time of application – no customary adoption of the visa applicant by the sponsor – decision under review affirmed

LEGISLATION

Family Law Act, s 61B

Migration Act 1958, s 65

Migration Regulations 1994, r 1.04, Schedule 2, cls 102.111, 102.212

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 Home Affairs on 7 October 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 is a national of Thailand, born in February 2005. He applied for the visa on 14 August 2019 and his sister made the visa application at the same time. The delegate refused to grant the visa on the basis that cl. 102.212 to eh Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied the visa applicant was an adopted child of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 25 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained three subclasses: subclass 101 (Child); subclass 102 (Adoption) and subclass 117 (Orphan relative) – Item 1108 of Schedule 1 to the Regulations. The visa applicant sought to be assessed against the subclass 102 (Adoption) visa. There is no evidence before the Tribunal to suggest that the visa applicant meets any of the key criteria for the subclass 101 or subclass 117 visas.

5. In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Regulations. Clause 102.212 requires the applicant to be sponsored by a person who is:

   (a)An Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and

   (b)In the case of an applicant who is a child for adoption – a prospective adoptive parent of the child; and

   (c)In the case of an applicant who is an adopted child – an adoptive parent of the child.

   Clause 102.111 defines the terms ‘adoptive parent’ and a ‘prospective adoptive parent’. Relevantly, the term ‘adoptive parent’ is defined to mean the person referred to in paragraph 102.211(2)(b) or 102.211(5)(b).

   Is the applicant an adopted child?

6. The issue before the Tribunal is whether the visa applicant is sponsored by his adoptive parent, as required by cl. 102.212. The review applicant is an Australian permanent resident and cl. 102.212(a) is met. At the time of the application, there was no evidence that the review applicant and his partner had undertaken in writing to adopt the visa applicant (and the Tribunal does not consider the formal adoption that took place in 2019, to be evidence of such an undertaking). The Tribunal is not satisfied the visa applicant is a child for adoption and the requirements of cl. 102.212(b) are not met. The visa applicant is seeking to rely on cl. 102.212 and claims that he is sponsored by an adoptive parent. The Tribunal must consider whether the review applicant is the adoptive parent of the visa applicant. 

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant submitted with the application evidence of adoption which showed the sponsor’s partner (the visa applicant’s maternal aunt) Rinlapat Thanasakjitt to be the sole adoptive parent. The primary decision record indicates that the delegate contacted the sponsor in October 2019 and the sponsor confirmed that he did not sign the adoption registration as he was in a de faction relationship with Rinlapat Thanasakjitti but not married to her. The visa applicant provided to the delegate a statement from the sponsor and Ms Thanasakjitti indicating that there was no court order for adoption as they had not attended court for adoption and the adoption application was made to the Social Development and Human Security Office. There was evidence of the sponsor’s employment and financial records.

8. The review applicant provided to the Tribunal a declaration from Ms Rinlapat Thanasakjitti in which she states that she and the review applicant are de facto partners since 2004. Ms Thanasakjitti states that the two children are of her and her husband and had been living together for 15 years. Ms Thanasakjitti states that she made the application for a formal adoption of the children to the Social Development and Human Security Office in Thailand and an officer conducted an interview and accepted that the children had been living with the adoptive parents for many years and that she and the sponsor adopted parental roles in relation to the children. Ms Thanasakjitti states that the officer of the Social Development and Human Security office advised her that there was no need for both adoptive parents to make an application for the adoption and even if only one parent is registered as an adoptive parent on the papers, both are legally approved to be adoptive parents, given their de facto relationship. As such, they did not insist that the sponsor’s name be included in the adoption papers. Ms Thanasakjitti states that her husband is also an adoptive parent of the children and had assumed a parental role for over 15 years. Ms Thanasakjitti provided a further declaration in which she outlined the circumstances in which she decided to adopt the two children at a very young age, noting that the parents had not provided care to these children.

9. In oral evidence, Ms Thanasakjitti explained that the children’s mother had disappeared over 15 years ago and could not take care of the children. They made the decision to adopt the children to help her elderly parents. The mother has sporadic contact with the children and she agreed for the children to be adopted and has had no other involvement with the children and has not provided financial support. There has also been no contact with the father. Ms Thanasakjitti said they wanted to go through the adoption process earlier but she was not considered to be old enough or responsible enough. After she came to Australia, she became more financially stable and the Thai authorities allowed them to go through with the adoption process.

10. For the purpose of cl. 102.212(c), the applicant must be sponsored by an adoptive parent. In this case the sponsorship form and undertaking were completed by Mr Watchara Charoenchai, the de facto partner of the visa applicant’s maternal aunt and the Tribunal finds Mr Charoenchai is the sponsor.

11. Included with the primary application was an Adoption Order dated April 2019, which named the sponsor’s partner as the adoptive parent, but the sponsor is not named as an adoptive parent of the visa applicant.

12. The review applicant explains that the relevant authority in Thailand told him that it is not necessary for both parents’ names to appear on the adoption papers and that both are legally recognised as parents even if only one parent is name on the Adoption certificate. That statement is not supported by other probative evidence to confirm that the Thai law automatically recognises a de facto partner as an adoptive parent.

13. In his submission to the Tribunal of 21 May 2021 the review applicant states that the legislation does not require that the name of the adoptive parent must appear on the adoption paper. The Tribunal considers that submission misguided because the issue here is not what appears on the adoption paper but whether the particular person had adopted the visa applicant. The adoption papers may be viewed as evidence of the actual adoption and that is what must be considered by the Tribunal. That is, the fact that the review applicant was not named on the adoption may be evidence that  he is not an adoptive parent. The review applicant submits that he and his partner are de facto partners in a long term relationship and had been providing care to the two children, meeting their parental responsibilities. The review applicant also notes that they had declared their relationship to the Thai authorities and were advised that it is not necessary for the sponsor to be specified on the adoption papers. Ms Thanasakjitti explained to the Tribunal that to get the adoption approved, she had contacted the local Child Adoption Centre. She was living in Australia at the time and both she and her partner had returned to Thailand. They had to present witness statements and other papers to the Authority. Ms Thanasakjitti said that their marriage was not recognised under the Thai law because it was not registered (even though they are in a long term de facto relationship) but if they were asked to register marriage, they would have done so.

14. The Tribunal accepts the evidence that both the sponsor and his partner approached the Thai authorities to arrange adoption and that they may have been advised that it is sufficient for only one parent to appear on the adoption certificate. However, such advice might reflect the situation under Thai law but not under the Australian Migration Act. That is, it is possible that under the Thai laws, only one parent is required for the adoption to be a valid one and that is the reason why the parties received advice that only one parent’s name could appear on the adoption papers. However, that process is not designed to meet the requirements of the Migration Act. The Tribunal is of the view that, to be recognised as an adoptive parent, the adoption certificate (which offers probative evidence of the formal adoption) must identify the sponsor as an adoptive parent. The fact that only the sponsor’s partner appears on the adoption certificate and not the sponsor may be indicative that the sponsor was not recognised as an adoptive parent under the Thai law and that there is no evidence that he is recognised as an adoptive parent in relation to the adoption that took place in 2019. The review applicant has not provided satisfactory evidence to the Tribunal to indicate that under the Thai law, both parents would have been recognised as adoptive parents when only one parent is named as an adoptive parent.

15. The review applicant argues that he should be recognised as an adoptive parent in fact, given his parental responsibilities in relation to the visa applicants. The representative submits that there was a practical parent – child relationship between the review applicant and the children, so that the review applicant is an adoptive parent in fact, if not on paper, and to find otherwise would be contrary to the various court authorities which require assessment of parentage in light of the contemporary meaning of the term ‘parent’ . The representative submits that customary law would recognise him as a parent, given his parental responsibility towards the children. The Tribunal accepts that the review applicant and his partner had assumed parental responsibilities since the children were very young however, in the Tribunal’s view, that is not sufficient to establish adoption. That is, the customary law or the authorities to which the applicant refers cannot override the specific definitions contained in the Migration Act. The Tribunal must apply the definition of adoption expressly set out in reg.1.04 which, essentially requires either formal adoption or customary adoption.

16. The Tribunal is not satisfied on the evidence before it that at the time the application was made, the review applicant has formally adopted the visa applicant.

17. In April 2022 the review applicant provided to the Tribunal evidence of a formal adoption. The Tribunal accepts, on the basis of that evidence, that formal adoption has taken place. However, the adoption papers indicate that the adoption was registered in March 2022, well after the time of application. The Tribunal invited the review applicant to provide further evidence in relation to the time of application criteria and the review applicant provided a further submission on 7 April 2022 in which he argues, effectively, that there was customary adoption at the time of application. 

18. The review applicant submits that there was customary adoption, given his relationship with the children. The Tribunal accepts the review applicant’s evidence concerning his interactions with the children, and his responsibilities and the parental role he has played in relation to the visa applicant. The review applicant’s evidence is not in dispute. However, the Tribunal is not satisfied that there was customary adoption in this case because the Tribunal is not satisfied the adoption was not available under the Thai law (given that it did take place in 2019 for the review applicant’s partner and in 2022 for the review applicant).

19. The review applicant argues that even though formal adoption was available in Thailand, it was not necessary or practical in the circumstances. The Tribunal is not satisfied that it was not reasonably practicable to have formal adoption in the circumstances. The review applicant submits that the children were abandoned by their parents and while that may have been the case, that in itself is not sufficient to establish that the formal adoption was not reasonably practical or not available. The evidence before the Tribunal is that the review applicant and his partner did approach the Thai authorities and were told that they were not yet suitable for the adoption arrangements but once their circumstances changed, Ms Thanasakjitti was able to go through the formal adoption process. That is, formal processes were available to the couple, they were required to meet certain requirements which they were capable of meeting and did meet after some time and once they met these requirements, they were able to go through with the adoption process. While the Tribunal accepts the evidence that the review applicant did not believe any steps were necessary because both parties would be recognised as adoptive parents even if only one was recognised on the adoption papers, in the Tribunal’s view that  does not render formal adoption as being ‘not reasonably practicable’.  This is because, as noted above, the review applicant has not presented satisfactory evidence that under the Thai law, both partners are recognised as adoptive parents when only one is named on the adoption papers. thus, even if that  is the advice that the review applicant received, the Tribunal is not satisfied that advice reflects the local laws. The Tribunal is of the view that under the Thai law, both partners would have been required to go through the adoption process (and they ultimately completed it in 2022). In these circumstances, the Tribunal is not satisfied that formal adoption was not reasonably practicable in this case. The Tribunal is not satisfied that the requirements of reg. 1.04(2)(c) are met and the Tribunal is not satisfied there was customary adoption by the sponsor prior to, or in addition to, the formal adoption by his partner.

20. The review applicant submits, in the alternative, that the adoption in Thailand meets reg. 1.04(1)(b) by reason of its being a customary adoption that was subsequently ratified by the authorities in Thailand. However, there is nothing in the adoption papers before the Tribunal to indicate that the adoption authorities had considered the past (claimed customary) adoption and that the grant of the adoption is, in fact, a ratification or recognition of the earlier customary adoption. The subsequent adoption appears to have been evidence of the fact that at the time when the adoption was granted, the authorities recognised the parents as adoptive parents. It does not serve as evidence of their past recognition as adoptive parents. The representative submits that although formal adoption was available in Thailand, there was also a possibility  that under Thai law there was an initial customary adoption which was subsequently ratified through the application process, which was done here. The Tribunal has formed the view that there is absolutely no basis for that assertion. The representative has failed to point to the Thai law that allows for the ‘ratification’ of a customary adoption, nor is there evidence that in this particular case, the subsequent formal adoption was in fact such a ratification of an earlier adoption. The Tribunal does not accept that argument.

21. The representative submits that the review applicant had acted as a parent and it would be unfair to deny him the opportunity to be recognised as the parent of the child. The Tribunal considers that argument unpersuasive because it must apply the statutory provisions and the broad statements of ‘fairness’ cannot override such requirements.

22. The Tribunal has formed the view that there was no customary adoption of the visa applicant by the sponsor and the formal adoption does not recognise the sponsor as the adoptive parent at the time of application, so there was no formal adoption of the visa applicant by the sponsor. It follows that the sponsor is not an adoptive parent of the visa applicant. The Tribunal is not satisfied the visa applicant meets cl. 102.212(c) and cl. 102.212. The visa applicant does not meet the requirements for the grant of the Adoption visa.

23. There is no evidence that the visa applicant’s biological mother is of unknown whereabouts (the oral evidence before the Tribunal is that there has been sporadic contact with her) and there is no evidence that she is permanently incapacitated. The Tribunal does not consider unwillingness to care for a child equates to incapacity. The Tribunal is not satisfied the visa applicant is an orphan relative of the sponsor and the visa applicant is not entitled to the grant of the Orphan Relative visa.

24. The Tribunal has considered whether the visa applicant is entitled to the grant of the Child visa. The visa applicant is not a biological child of the sponsor. The Tribunal acknowledges that the definition of a child is broader than a biological relationship.

25. As noted above, the Tribunal accepts that the sponsor had taken care of the children and provided for them financially and emotionally and otherwise since young age. However, the Tribunal is not satisfied on the evidence before it hat the sponsor had the parental responsibilities for the children within the meaning of s. 61B of the Family Law Act. Neither  has the review applicant provided satisfactory evidence that under the Thai law, he would have been recognised as the child’s parent merely by virtue of his relationship with his partner, who was an adoptive parent when the present application was made. That is, the Tribunal is not satisfied the visa applicant is a child of the sponsor. The visa applicant does not meet the requirements for the grant of the Subclass 101 Child visa.

    Conclusion

1. For the reasons given above the Tribunal finds the visa applicant does not satisfy the requirements of cl.102.211. The Tribunal has also decided that the visa applicant does not meet the requirements for the grant of the other visas in Class AH.

   DECISION

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

   Kira Raif

   
   

   Senior Member