Chen (Migration)

[2021] AATA 3401

Chen (Migration) [2021] AATA 3401 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Donghai Chen

VISA APPLICANT:  Master Shunping Chen

CASE NUMBER:  1904545

DIBP REFERENCE(S):  OSF2017/019208

MEMBER:Hugh Sanderson

DATE:20 August 2021

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 20 August 2021 at 1:04pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – legitimate adoption – review applicant residing overseas over 12 months – adoption laws in China – acquiring Australian citizenship before adoption – review applicant’s former wife currently providing care – adoption order not revoked – business commitments in Australia – referral for Ministerial Intervention – no other obvious person to care for the visa applicant in China – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, r 1.04; Schedule 2, cls 102.211, 102.221

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 18 February 2019 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 applied for the visa on 21 December 2017. The delegate refused to grant the visa on the basis that the visa applicant did not meet the criteria in cl.102.213 and cl.102.211(2)(b)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the visa applicant had not been legitimately adopted by the review applicant and the review applicant had not resided outside Australia for the 12 months immediately before the application was made.

   Background

3. The review applicant was born in China and is currently 50 years old. He was granted a Subclass 119 Regional Sponsored visa in 2006 with his wife, Lihua Zhang. Lihua Zhang became an Australian citizen on 6 August 2009. The review applicant remains a citizen of China.

4. The review applicant’s movement records show that for the 12 months immediately before the application was made he has travelled out of Australia over the following periods:

   ·From 6 March 2017 to 14 March 2017 (8 days);

   ·From 27 March 2017 to 5 April 2017 (9 days);

   ·From 19 April 2017 to 15 May 2017 (26 days);

   ·From 13 June 2017 to 20 June 2017 (7 days);

   ·From 4 July 2017 to 10 July 2017 (6 days);

   ·From 17 August 2017 to 5 September 2017 (19 days);

   ·From 20 September 2017 to 25 September 2017 (5 days);

   ·From 2 November 2017 to 6 November 2017 (4 days); and

   ·From 28 November 2017 to 9 December 2017 (11 days).

5. In total, the review applicant spent 95 days overseas in the 12 months immediately before the application was made.

6. The visa applicant was born in China on 18 July 2010 and is currently 11 years old. The review applicant and Ms Zhang purported to adopt the visa applicant in China. A copy of the adoption certificate dated 4 March 2011 was provided.

7. The visa applicant has been granted a series of Visitor visas to enter Australia. He has been present in Australia as follows:

   ·From 8 August 2011 to 20 September 2011;

   ·From 6 October 2012 to 6 November 2012;

   ·From 17 November 2012 to 9 January 2013;

   ·From 9 April 2015 to 30 June 2015;

   ·From 22 September 2015 to 2 November 2015;

   ·From 14 November 2015 to 30 January 2016;

   ·From 9 July 2018 to 24 August 2018; and

   ·From 15 January 2019 to 20 September 2019.

8. On all occasions the visa applicant has entered or departed Australia he has travelled with either the review applicant or his former wife or both of them. Since 2016 the visa applicant has always travelled with the review applicant’s former wife. Both the review applicant and his former wife have made multiple other trips out of Australia. The review applicant’s former wife departed Australia with the visa applicant on 20 September 2019 and has not returned to Australia since then.

9. The review applicant has previously sponsored the visa applicant on two occasions for the grant of a Subclass 102 Adoption visa. The first application was made in November 2011. It was refused by the Department on the basis that the adoption order made in China was on the basis that both the review applicant and Ms Zhang had declared that they were citizens of China when the application to adopt a child was made in 2007. As, at the time of the adoption decision, Ms Zhang had become an Australian citizen, she was barred from being a citizen of the People’s Republic of China. As the review applicant and his former wife had not advised the Chinese authorities of the review applicant’s former wife’s change of citizenship status, the adoption order had been made based on false and misleading information and the adoption was invalid.

10. A second Subclass 102 Adoption visa application was made on 1 November 2013. After the Department raised the same concerns in respect of that application, that application was withdrawn.

11. When the current application was made, the review applicant’s agent made the following submissions:

    ·The previous applications for the grant of the visa were refused because Article 21 of the Chinese Adoption Laws for foreign nationals was not complied with and the review applicant and his then wife were unaware of the ramifications of the review applicant’s then wife having dual citizenship[1] and they did not follow the prescribed requirements;

    ·The adoption application was made after the parties made a return trip to China in September 2010, when the review applicant’s wife did not have Australian citizenship;

    ·The review applicant has now divorced his wife and remarried and the visa applicant has minimal contact with his adoptive mother; and

    ·While the review applicant does not reside in China, the visa applicant is supported by the review applicant’s parents and Weiyi Chen (the review applicant’s current wife).

    [1] It is noted that Chinese law does not allow dual citizenship and if a Chinese citizen is granted citizenship of another country their Chinese citizenship is revoked.

12. The delegate’s decision sets out the reasons why the application was refused. The delegate noted that the criteria that must be met in cl.102.213 is that the laws relating to adoption in the country in which the child is normally resident have been complied with. The delegate stated as follows:

    Adoption Law of the People's Republic of China was introduced in December 1991 and amended in November 1998. Foreign nationals wishing to adopt a child are required to follow Article 21 of the 1998 amendment of that law, which includes providing a range of supporting materials certified by an appropriate agency from their country of nationality.  The Measures for Registration of Adoption of Children by Foreigners in the People's Republic of China are formulated in accordance with the Adoption Law of the People’s Republic of China.

    Article 10 states of the measures states that “where a person with spouse adopts a child, the husband and wife shall adopt the child in concert”. Article 2 states that the adoption of children within the territory of the Peoples Republic of China by foreigners shall be registered in accordance with these measures.  In addition, where one party of an adopting couple is a foreigner, the adoption of a child in China shall also be registered in accordance with these measures.

    Submitted with this application is a certified copy of an adoption Registration Certificate of the People’s Republic of China, issued by Civil Affairs Bureau of Zengcheng City, Guangdong. The adoption certificate states the nationalities of both declared adoptive parents (Mr CHEN and Ms ZHANG) as Chinese. Departmental records show that Ms ZHANG has acquired Australian citizenship on 6 August 2009. Therefore, the information provided to the Civil Affairs Bureau in relation to the adopting parties’ nationalities was false or misleading at the time of adoption.

    I note that this is the applicant’s third application for a Subclass 102 visa. An application was lodged by the same applicant and sponsor in November 2001 [sic]. The application was refused on account of the applicant’s adoptive mother misrepresenting her nationality during the adoption process. It follows that the adoption therefore was not processed through the foreign adoption measurement. Another Subclass 102 visa application was lodged on 1 November 2013, with the same concerns identified. The application was later withdrawn.

    On 7 June 2018the Department contacted the Social Affairs Division of the Guangdong Provincial Civil Affairs Department. This department is the supervising authority of the Zengcheng Civil Affairs Bureau, who issued the original adoption certificate. The Department were advised that the procedures of approving an adoption for Chinese nationals and foreign nationals are different. Furthermore, only the provincial level civil affairs bureau holds the authority to approve adoption concerning foreign nationals.

    It was confirmed that under the above circumstances, the adoption should not have been approved at the Zengcheng Civil Affairs Bureau. It was advised that if an adoption were wrongly approved in the same circumstances, it is highly likely the adoption certificate would be cancelled.

    On 8 June 2018, the sponsor was contacted via telephone. Mr CHEN admitted that his former spouse had misrepresented her nationality. The sponsor claimed that he and Ms ZHANG had started their application to adopt in 2007. In 2010, the couple were informed by the Bureau that a child had been assigned for them. In March 2011, the adoption procedures were completed, and the applicant began living with the Mr CHEN and Ms ZHANG as a family. The sponsor claimed it was negligence was the reason the couple did not update Ms ZHANG’s nationality with the Bureau.

    After the initial Subclass 102 visa application was refused, the couple visited the Bureau in 2013 with the intention of solving the issue.  The Bureau advised that the adoption may be annulled, as the couple had provided misleading information in their adoption application. If the couple applied again, the application would be assessed against the correct adoption law. The applicant would be returned to the welfare home if the adoption certificate was annulled, and there was a possibility that the child would not be assigned again to the couple. Mr CHEN stated that the couple were so worried that the applicant would not be returned to them if the certificate was annulled, they would not proceed with the matter.

    Based on the above information, I am not satisfied that the adoption has been carried out in compliance with Chinese adoption law. I am not satisfied that Ms ZHANG Lihua’s Australian citizenship was not deliberately concealed in order for the adoption to be processed with the understanding that both adopting parties were Chinese nationals. Therefore, I do not find that the correct formal adoption procedures relevant to the adopting parties was followed. I am not satisfied that Regulation 1.04(1)(a) and (b) are met.

    In consideration of Regulation 1.04(1)(c), I do not find that subregulation (2)(a) is met, as the adoption arrangement was not made in accordance with the usual practice or recognised custom in the culture of the adoptee and adopter. Adoption law has existed in China since 1991, with private adoption no longer accepted or recognised by the Chinese government.

    I have considered that the applicant has been cared for by the sponsor since adoption in 2011 to the present. I accept the sponsor’s claims that the child-parent relationship between the adoptee and the adopter is significantly closer than any other relationship of the adoptee. However, formal adoption was available at the time when the adoption arrangement was made on 4 March 2011. There is no reason before me to consider that formal adoption would not have been possible for Mr CHEN and Ms ZHANG at the time of the applicant’s adoption.

    The sponsor and his ex-spouse provided misleading information regarding Ms ZHANG’s nationality at the time of finalising the adoption assessment. When being made aware that the adoption would require a new assessment carried out in accordance with the procedure for adoption by a foreigner, the parties chose not to take correct action.

    The sponsor and Ms ZHANG did not rightfully adopt the applicant in accordance with the law. As such, I do not give any weight to the provided court document dated 2 September 2014, stating that the sponsor has custody and guardianship of the applicant. Based on the available information, I find that Regulation 1.04 and Clause 102.213 are not met.

    In addition, clause 102.211(2)(b)(ii) requires that adoptive parents must have resided outside of Australia for more than 12 months immediately prior to the time of application. Departmental records show the sponsor was outside of Australia for only 89 days in the 12 months prior to this visa application. Therefore, I am not satisfied that the requirement of subclause102.211(2)(b)(ii) is met.

    From the information and evidence available to me on the date I make my decision, the applicant does not satisfy the criteria of subclauses 102.211(2)(b(ii). Therefore, I am not satisfied that the applicant meets the requirements for grant of an Adoption (Subclass 102) visa.

13. The delegate noted that no claim had been made that the visa applicant met the grant of a Subclass 101 Child visa or a Subclass 107 Orphan Relative visa. Accordingly, the delegate found the visa applicant did not meet any criteria for the grant of the visa and refused the application.

    Information to the Tribunal

14. The applicant provided various documents in support of the application. This included receipts for language training/tuition for the visa applicant, property management fees, the review applicant’s Chinese credit card statement and electricity receipts. The documents were all in Chinese and were not properly interpreted.

15. The review applicant’s former wife provided a statement where she made the following claims:

    ·The adoption application was lodged in 2007 before she became an Australian citizen in 2009;

    ·She and the review applicant were divorced in 2013, although they remain good friends as parents of the visa applicant;

    ·She returned to live in China to be able to look after her parents;

    ·The review applicant’s parents were looking after the visa applicant, however, the review applicant’s father died in December 2019 and his mother travelled to Australia in January 2020 and has not been able to return to China;

    ·The visa applicant was being looked after by the review applicant’s parents, however, due to the above circumstances she has been looking after the visa applicant, but it is increasingly difficult as she has to care for her parents;

    ·Through the courts, she has declared that the review applicant has full custody and guardianship of the visa applicant; and

    ·She has been receiving financial support from the review applicant for caring for the visa applicant.

16. The applicant provided a written opinion from Lin Ziwei, a lawyer with Team Source Law Firm, a law firm based in Guangdong, dated 26 September 2014. In the written opinion, the following was claimed:

    ·The adoption was valid as the review applicant handled the adoption formalities legally and got an adoption certificate;

    ·The Public Security Bureau registered the visa applicant in the household of the review applicant which certifies the authority of the adoption certificate;

    ·The mediation and court arrangement mean that the review applicant shall take and care for the visa applicant meaning the review applicant has sole custody and guardianship of the visa applicant;

    ·The review applicant’s former wife has given the review applicant full custody and guardianship of the visa applicant; and

    ·For the above reasons, the review applicant has sole custody and guardianship of the visa applicant.

17. The review applicant made a statement where the following was claimed:

    ·He has sole custody and guardianship as a result of mediation between himself and his former wife formalised on 2 September 2014;

    ·He had his lawyers speak to the authorities who confirmed that the adoption is valid;

    ·The orphanage where the visa applicant was previously living has never heard of a case where an adoption should be set aside and then the adopting parents adopt the same child again;

    ·The officer from the orphanage said there was no reason to adopt the child again;

    ·Although he had not spent the 12 months prior to the application living in China, he had spent five years living in China since adopting the visa applicant;

    ·The review applicant and his wife returned to China in 2015 and they bought a restaurant, however, the marriage came to an end and he has been looking after his child since then;

    ·The review applicant has been travelling back to China as often as possible to spend time with the visa applicant;

    ·When the adoption application was made in 2007, the review applicant and his wife were citizens of China and “when issuing the adoption certificate, Chinese authority assumed the data filed earlier with them and didn’t require us to update our personal details like Australian authorities constantly do”; and

    ·The review applicant has all the rights to care for the visa applicant as he would under the Family Law Act 1975.

18. The review applicant appeared before the Tribunal by MS Teams on 10 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s former wife and Mr Tang, a friend of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing.

19. The review applicant said that he was living with his current wife, stepson and his mother. He was working as the owner of a restaurant which he opened in October 2015. He said the visa applicant was currently living with his former wife in China. He said that he believed that his former wife had travelled to China on her Australian passport but did not know what plans she had. He did not know if she had ever advised the Chinese authorities that she had become an Australian citizen.

20. The Tribunal noted the review applicant’s travel overseas in the 12 months prior to the application. He said that he was travelling overseas mainly to see his son and to help take care of his mother. He said that he had always travelled regularly to China after arriving in Australia because his father fell ill in 2001. He said that after he became busy with his restaurant after October 2015, he asked his former wife to take care of their child. He said that he could not spend much time in China in the 12 months before the application because he was busy with his restaurant business and his current wife arrived in Australia in 2016 and he needed to live with her and his stepson. He said that he could not be asked to do everything.

21. The review applicant said that he believed his former wife took steps to become an Australian citizen at the end of 2008 or beginning of 2009. He said that he believed her friends had advised her to become an Australian citizen. He said that he did nothing at the time as he was uncertain if he would stay in Australia.

22. The Tribunal noted the reasons the Department had identified as to the reason they believed the adoption of the visa applicant was not valid. The review applicant said that he had complied with all the requirements from the Chinese authorities. They did not question him about the citizenship of himself or his former wife and they did not ask them to update the information. He said that all the information he provided at the time was correct. He said that if he knew his former wife would not meet the requirements because she was an Australian citizen he would not have her included in the adoption process. He said the adoption is still recognised in China as valid and that if it was invalid the authorities in China would not let him care for the visa applicant and the visa applicant would be taken away.

1. The review applicant’s former wife gave evidence in support of the application. She said that she was currently living with the visa applicant. Her parents live nearby her. She said that she was receiving financial support from the review applicant and had not worked in China since 2006. She said that she only holds an Australian passport and her last Chinese passport expired in 2009.

2. The review applicant’s former wife said that she applied to become an Australian citizen in 2009. She was not sure when she started taking steps to become an Australian citizen, saying that it takes several months to be finalised. It was noted she became an Australian citizen in August 2009. She said that she decided to become an Australian citizen because after arriving in Australia she liked it and did not think about it.

3. The Tribunal noted that the reason why the Department had found that the adoption of the visa applicant was not valid was based on the review applicant’s former wife having become an Australian citizen before the adoption order was made. The review applicant’s former wife said that in 2007 when they had commenced the proceedings to apply to adopt a child, both she and the review applicant were Chinese citizens. She said that she was surprised at how long it took for the adoption application to be finalised and how quickly after making the application she was granted Australian citizenship. She said that she did not understand how becoming an Australian citizen would affect the adoption process. She said nobody told her that she should tell the authorities in China that she had become an Australian citizen.

4. Mr Tang gave evidence in support of the application. He said that he had known the review applicant for about six years. He said that in the 12 months prior to the application being made the review applicant had been very busy with his business. He said that the review applicant usually works seven days a week at his restaurant.

5. After the hearing, the review applicant provided further documents including the following:

   ·Statutory declaration of the review applicant sworn 16 August 2021;

   ·Letter from Mr Tang as president of the Ryde Community Forum dated 13 August 2021; and

   ·Submissions from the representative.

6. In the statutory declaration, the review applicant made the following claims:

   ·He has been providing financial support for the visa applicant at all times;

   ·The Chinese authorities have not revoked the adoption order and the adoption order remains valid;

   ·The visa applicant does not know that he is adopted and believes he is the natural child of the review applicant and the review applicant’s former wife; and

   ·The delay in having the visa granted is causing significant psychological problems for the review applicant and the visa applicant.

7. In the submissions from the representative, the following was claimed:

   ·Both the review applicant and his former wife were Chinese citizens in 2007 when the adoption application was first made;

   ·The review applicant “did not know and was not fully aware that at the time of the decision for receiving adoption he or his former wife should have declared that her [sic] former wife’s nationality had changed”;

   ·The review applicant has spent five years overseas with the visa applicant and has resided well over 12 months in China with the visa applicant at different times;

   ·The Regulations do not define a timeframe for the sponsor to have been overseas for 12 months prior to the application; and

   ·If the Tribunal concluded the visa applicant did not meet the criteria for the grant of the visa, this would be an appropriate matter for Ministerial intervention on the basis of the following:

   oBoth the review applicant, as a person who has the right to reside permanently in Australia, and the visa applicant are suffering from psychological trauma due to the separation caused by the failure to grant the visa;

   oThe Chinese authorities have not revoked the adoption order;

   oThe visa applicant believes that he is the child of the review applicant and the review applicant’s former wife; and

   oThe fact that the review applicant is suffering from psychological trauma as a result of being separated from the visa applicant is adversely affecting his capacity to properly function as a successful business person owning a restaurant in Australia.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. There are only limited circumstances where an adoption would be recognised for the purposes of migration law without the involvement of the competent authorities in Australia. One such circumstance is referred to as expatriate (private overseas) adoption.[2] This occurs where the child has been adopted outside Australia by a person who has been living outside Australia for more than 12 months at the time the visa application was made.

   [2] See for example DIBP website ‘Adoptions by Australians who are outside Australia’ accessed 17/08/2021.

10. For the purposes of satisfying the Subclass 102 criteria on the basis of an expatriate (private overseas) adoption, cl.102.211(2)(b)–(d) requires that at the time of application:

    ·the applicant must have been adopted overseas by a person who was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen;[3] and

    ·the adopting parent/s had been residing overseas for more than 12 months at the time of the application;[4] and

    ·the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    ·the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.[5]

    [3] Clause 102.211(2)(b)(i).

    [4] Clause 102.211(2)(b)(ii). This requirement is replicated for onshore Child visas in cl.802.213(5)(b)(i).

    [5] Clause 102.211(2)(b)–(d).

11. The issue in the present case is whether the laws relating to adoption in China where the visa applicant is normally resident have been complied with. A further issue is whether the review applicant had been residing overseas for more than 12 months at the time of the application.

    Compliance with Chinese adoption laws

12. The issue identified by the Department in respect of the adoption of the visa applicant by the review applicant and his former wife was that at the time of the adoption, the review applicant’s former wife had become an Australian citizen. Under Chinese law, there are two different processes for adoption when the people applying to adopt a child are both Chinese citizens and another process when either one or both of the parents are not Chinese citizens. The details of these processes are set out in the delegate’s decision set out above.

13. The adoption process was undertaken by the review applicant and his former wife in 2007. At that time, both the review applicant and his former wife were Chinese citizens. The information the parties provided to the adoption authorities in China were that they were Chinese citizens, and the legal process that was undertaken to adopt the visa applicant was on the basis that they were both Chinese citizens.

14. The review applicant’s former wife became an Australian citizen on 6 August 2009. At that time, her Chinese citizenship was terminated. She became a foreign national as far as Chinese law was concerned. This was almost a year before the visa applicant was born and more than 18 months before the adoption order was made.

15. There is no information which would indicate the review applicant or his former wife advised the adoption authorities in China that the review applicant’s former wife was no longer a Chinese citizen. As stated in the statement provided by the review applicant, the Chinese authorities “assumed the data filed earlier with them and didn’t require us to update our personal details like Australian authorities constantly do”. There is nothing to indicate that the review applicant or his former wife provided any information to the adoption authorities of the review applicant’s former wife’s citizenship or any other change to the information that had been provided by them to the adoption authorities in 2007.

16. As set out in their decision, the Department contacted the relevant authorities in China, being the Social Affairs Division of the Guangdong Provincial Civil Affairs Department, who confirmed that in the circumstances described, the failure to advise of the change of citizenship meant that the adoption laws had not been complied with and the adoption should not have been approved. The Department was advised that if an adoption had been approved in the manner described after one of the parents had changed their citizenship, it was highly likely the adoption certificate would be cancelled.

17. No information has been provided from any official authority associated with the adoption of the visa applicant which would indicate that the review applicant or his former wife or anyone on their behalf has advised the adoption authorities that the review applicant’s former wife had become an Australian citizen prior to the adoption order being made. The applicant has argued that the adoption is still recognised by the Chinese authorities as genuine. The fact that the Chinese authorities recognise the adoption as genuine, however, appears to be based on the fact that no one has advised the appropriate authorities that at the time of the adoption the review applicant’s former wife had become an Australian citizen and ceased to be a citizen of China. There is nothing to indicate what, if any, action the Chinese authorities would take if they were aware of this fact. As is indicated in the delegate’s decision, it is likely that the Chinese authorities would find that the adoption would not have been approved and the adoption would be cancelled.

18. The review applicant has provided a copy of an agreement between himself and his former wife confirming that he has been granted sole custody and guardianship of the visa applicant. This is despite the fact that the visa applicant is living with the review applicant’s former wife and, since 2015, she has always travelled with the visa applicant and been residing in the same country as the visa applicant including for the two year period in China from 30 January 2016 to 29 July 2018. The fact that the review applicant and his former wife may have entered into an agreement granting him sole custody and guardianship does not overcome the issue of whether when they adopted the visa applicant they had complied with the laws of adoption in China.

19. The review applicant provided a legal advice from Chinese lawyers. The details of the questions that were put to these lawyers has not been provided. The information that was provided to the lawyers has not been provided to the Tribunal. The advice by the Chinese lawyers appears to be directed at the agreement between the review applicant and his former wife. It does not address the issue identified in the Department’s decision which is whether, due to the fact that the review applicant’s former wife was no longer a Chinese citizen for over a year before the adoption order was made, the adoptive parents had lawfully acquired full and permanent parental rights by the adoption. There is no advice given as to whether the adoption, in light of the fact that one of the adopting parents was not a Chinese citizen and the procedure adopted was for where both adopting parents are Chinese citizens, is valid.

20. The review applicant complained that the Chinese authorities did not require them to update their personal details like Australian authorities constantly do. As the review applicant and his former wife would have been required to prove their Chinese citizenship at the time the adoption application was made, the Tribunal does not accept that the Chinese authorities would not have had an expectation that the parties would have advised them of a substantial change in the parties circumstances, that being that the review applicant’s former wife was no longer a Chinese citizen. The Tribunal does not accept that the review applicant and his wife did not advise the authorities due to ignorance or an innocent mistake, but due to the fact that they both desperately wished to adopt a child and did not wish to face further delays in being able to do so.

21. Regardless, the fact is that at the time the review applicant adopted the visa applicant the review applicant’s former wife was no longer a citizen of China. The process that had been taken to adopt the visa applicant was based on the fact that both the review applicant and his former wife, as the adopting parents of the visa applicant, were Chinese citizens. A different process for adoption must be undertaken where one or both of the adopting parents is a foreign national. As the review applicant and his former wife did not advise the Chinese authorities that the review applicant’s former wife was no longer a Chinese national prior to the adoption order being made, the laws relating to adoption in China where the visa applicant is normally resident had not been complied with.

22. The Tribunal finds that by failing to advise the Chinese authorities that the adoptive mother (the review applicant’s former wife) was not a Chinese citizen at the time the adoption order was made, the procedures followed for the adoption were not in accordance with Chinese law. Accordingly, the Tribunal finds the review applicant and his former wife have not lawfully acquired full and permanent parental rights by the adoption.

23. For the above reasons, the Tribunal finds the criteria in cl.102.211(2)(d) is not met.

24. As the Tribunal has concluded that the visa applicant does not meet this criteria for the grant of the visa, it is not necessary to consider the Department’s finding that the criteria in cl.102.211(2)(b)(ii) was not met.

25. There is no information before the Tribunal that the visa applicant would meet the criteria for the grant of any other subclass within the class of visa sought. Accordingly, the decision to refuse the application must be affirmed.

    Ministerial intervention

26. The review applicant has asked the Tribunal to support an application for Ministerial intervention. In all the circumstances, the Tribunal believes the exceptional circumstances in this application would justify Ministerial intervention. In coming to this conclusion, the Tribunal has taken into account the following factors:

    ·Although the Tribunal has found the review applicant and his wife did not lawfully acquire full and permanent parental rights of the visa applicant by the adoption, the fact is that since soon after the visa applicant’s birth, he has been in the care and control of the review applicant and his former wife;

    ·The review applicant and his former wife have shown continuing devotion to the visa applicant in caring for him and making applications to seek to have him be able to live with them in Australia;

    ·There is nothing to indicate that the review applicant and his former wife have not always given appropriate care and support to the visa applicant and there is nothing to indicate that the Chinese authorities have any concern as to their capacity to care for the visa applicant;

    ·The visa applicant has only known the review applicant and his former wife as his parents and at this time is not aware that he was adopted;

    ·The finding that the review applicant and his former wife did not lawfully acquire full and permanent parental rights of the visa applicant are based on the fact that the review applicant’s former wife became an Australian citizen prior to the adoption order being made;

    ·The fact that the review applicant’s former wife became an Australian citizen appears to have led to an unintended result that the adoption process that had been commenced in 2007 became invalid;

    ·It is likely both the review applicant and his former wife will continue to live in Australia and that despite the fact the parties entered into an agreement to give custody of the visa applicant to the review applicant, it is likely the review applicant’s former wife will continue to have a very close relationship with the visa applicant in Australia;

    ·If the visa applicant is not allowed to enter Australia it will place the review applicant and his former wife in an impossible position of deciding whether to return to live in China to be able to care for the visa applicant;

    ·Apart from the review applicant and his former wife, there is no other obvious person to be able to care for the visa applicant in China.

27. Although the Tribunal does support an application for Ministerial intervention to allow the visa applicant to live in Australia, the Tribunal does have some concerns as to the evidence provided by the review applicant in support of the application. This includes claiming that his former wife has minimal contact with the visa applicant when, in fact, it appears the review applicant’s former wife has been the person with primary care of the visa applicant at all times. This includes travelling with him as well as caring for him in China. This calls into question why the parties entered into a mediation agreement whereby the review applicant would have sole custody of the visa applicant when he was living and establishing a business in Australia.

28. It was claimed the review applicant’s former wife could not care for the visa applicant because she was caring for her parents. The evidence of the review applicant’s former wife was that her parents do not live with her although they live nearby. This does not indicate that she is unable to care for the visa applicant due to responsibilities to her parents and it is more likely that she has remained in China since returning to China with the visa applicant to be able to care for him.

29. Overall, despite these concerns, the Tribunal is satisfied that the circumstances of the visa applicant would justify Ministerial intervention and allowing the grant of the visa to him.

    DECISION

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

    Hugh Sanderson
    Member