Hean (Migration)

[2018] AATA 730

Hean (Migration) [2018] AATA 730 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kate Chhorvoinn Hean

VISA APPLICANTS:  Mr Kimsok Hean
Mrs Sethavy Seng

CASE NUMBER:  1602654

DIBP REFERENCE(S):  OSF 2013/084331

MEMBER:Hugh Sanderson

DATE:14 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Class UT) visas.

Statement made on 14 March 2018 at 7:54am

CATCHWORDS
Migration – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary)) – Whether visa applicants are parents of the review applicant – Where visa applicants previously adopted out the review applicant – Visa applicants are biological parents of review applicant - Adoption arrangement still in place at time of decision

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 173.211

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 6 January 2016 to refuse to grant the visa applicant a Contributory Parent (Temporary) (Class UT) Subclass 173 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 25 June 2013. The delegate refused to grant the visas on the basis that cl.173.211 of the Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied the first-named visa applicant (the visa applicant) was the parent of the review applicant.

   Background

3. The review applicant is the sponsor of the visa applicants for Contributory Parent visas. She is a citizen of New Zealand. She has resided primarily in Australia since 2007. She was granted a subclass 801 Partner (Residence) visa on 19 March 2013 and has the right to reside in Australia permanently.

4. The review applicant was born in Cambodia in 1982. She claims that her biological parents are the visa applicants. It was noted by the Department that in the review applicant’s marriage certificate dated 28 November 2010 her father’s name was stated to be Kim Say Khean and her mother was Socheat Pheng. The Department requested the applicant provide an explanation of this conflicting information.

5. The review applicant provided a statement dated 18 September 2015 where she said as follows:

   I would like to inform that father name: Kim Say Khean and mother name: Socheat Pheng who were listed in my marriage certificate are my adopted parents.

   I would like to clarify that I had been adopted since 1982/1983 by Kim Say Khean and Socheat Pheng. In year 2000 I moved to live in New Zealand with my adopted parents. In 2007 I moved to live in Australia and got married in 2010.

   Since the marriage certificate needed parents name and I don’t know who should I put in then I put my adopted parents name in.

   I would like to affirm that Kimsok Hean and Senthavy Seng are my biological parents.

6. The review applicant provided a letter from Kim Say Khean dated 25 May 2015 where he said as follows:

   I have adopted (the review applicant) in Cambodia as my daughter during 1982 – 1983. There was no adoption letter back then as Cambodia had just emerged from the Communist regime. It’s also customary to adopt children verbally back then.

7. The review applicant provided further statements by herself, her biological mother and other people stating that she returned to Cambodia for a holiday in January 2004 when she was 21 years old and, by chance, met her biological parents. The review applicant provided a statement where she said the following:

   With the approval from my adopted parents I was able to visit and live with them and eat their food for the first time from November 2005 to May 2006. I really had a good time with them and I was so happy that I was able to have a chance to live with my parents like other kid want, I feel warm and confident when living with them. From then onward, I visit my parents on a regular basis.

8. Documents were provided by the review applicant from her application to migrate to New Zealand. The basis on which she had migrated to New Zealand was that she had been customarily adopted by her parents who met the primary criteria for the grant of the visa and she was a member of their family unit. The documents provided in support of this claim included a Cambodian passport recognising the review applicant as the daughter of her adoptive parents and another official document from Cambodia recognising the review applicant’s relationship with her adoptive parents.

9. The review applicant provided a statement from her adopted father where the following was claimed:

   In 2004, I got information about biological parents of (the review applicant) through my sister, Mrs Bun Ly Khean when she visited Cambodia.

   After having known clearly that Mr Hean Kim Sok and Mrs Seng Sethavy are real biological parents of Say Chhorvoinn Khean I then return Say Chhorvoinn Khean back to her biological parents upon their request.

   I declare that I am NO longer the adopted parent of Say Chhorvoinn Khean since 2004. I also further declare that Say Chhorvoinn Khean has only one set of parents who are Mr Hean Kim Sok and Mrs Seng Sethavy.

10. The delegate who considered the application noted the following issues:

    ·The review applicant had been customarily adopted by Mr Khean and Mrs Pheng and, on the basis of the acceptance by the New Zealand authorities that the adoption was genuine, she was granted a visa to reside in New Zealand and became a citizen of New Zealand;

    ·The review applicant named Mr Khean and Mrs Pheng as her parents when she was married in 2010;

    ·The review applicant’s adoptive father initially signed a statement confirming their adoption of the review applicant;

    ·A person cannot have more than one set of parents, apart from step-parents;

    ·The process of adoption means that the legal parental tie with the biological parents is cut;

    ·The two statements provided by the adoptive father of the review applicant are inconsistent, as in the original statement he claims to continue to be the adoptive father of the review applicant and makes no claim of any “return” of the review applicant to her biological parents as he does in the second statement;

    ·At the time the review applicant reconnected with her biological parents in 2004 she was over 18 and therefore could not be adopted by them; and

    ·The legal parental relationship that the review applicant has with her adoptive parents can only be terminated if the review applicant were adopted again, and as she is over 18, this cannot be done.

11. Based on these considerations, the delegate found that the first-named visa applicant cannot be considered the “parent” of the review applicant. Accordingly, the visa applicant did not meet the criteria in cl.173.211 of the Regulations and the application was refused.

    Information to the Tribunal

12. The review applicant provided a Non-Suit Civil Case from the Phnom Penh Court of First Instance dated 10 November 2016 brought by the visa applicants and the review applicant. The stated cause of action claimed the following:

    ·The visa applicants gave up their daughter to be adopted because she suffered from a serious disease which was hard to cure;

    ·As Cambodia had just emerged from Civil War in 1982–1983 when the adoption took place there were no legal documents to certify the adoption of their daughter to Kim Say Khean;

    ·After reconnecting with their daughter, Kim Say Khean on 30 November 2015 wrote a letter certifying that he agreed to give their daughter back to them;

    ·It was declared that the visa applicants were the review applicant’s biological parents and there were no other parents; and

    ·Kim Say Khean had signed a letter dated 29 July 2016 declaring he is no longer the father of the review applicant and this is accepted by the review applicant and the visa applicants.

13. Based on the information provided to the Court, the Court ordered the family registrar to issue a new birth certificate for the review applicant registering the names of the visa applicants as her biological parents.

14. The review applicant provided a copy of her marriage certificate to Paulino Marcelino dated 11 January 2017 naming the visa applicants as her parents.

15. The review applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing by telephone link.

16. The Tribunal referred to the document entitled Non-Suit Civil Case dated 10 November 2016. The applicant said that she and her biological parents had made an application to the court for this declaration in 2015. She said that the declaration from the court had been obtained to show that she was no longer the daughter of her adoptive parents. She confirmed that, according to this document, at the time of the application she was still legally recognised as the daughter of her adoptive parents. She said that at the time the document was obtained in Cambodia she was resident in Australia, her adoptive parents were resident in New Zealand and her biological parents were resident in Cambodia.

17. The Tribunal noted that the requirements for the grant of the visa include that at the time of the application the visa applicant is sponsored by their child and that this criterion must also continue to be satisfied at the time of the decision. Although the Tribunal had concerns as to the validity of the declaration obtained in Cambodia dated 10 November 2016, in part because at that time the review applicant was over 18 years old, the review applicant had acknowledged that at the time of filing the application the review applicant remained the child of her adoptive parents in New Zealand and therefore could not be considered to be the child of her biological parents. The applicant acknowledged that this was correct.

18. The review applicant gave evidence as to the emotional turmoil she had suffered as a result of believing that she had lost her parents and then having located them again. She gave evidence of the relationship she now has with her parents.

19. The applicant provided a further statement after the hearing. The review applicant set out again the fact that she was customarily adopted between 1982 and 1983 and then moved to New Zealand with her adopting parents in 2000. She reunited with her biological parents after 21 years in 2004 and has grown very attached to them since then. She claimed her adoptive parents have disowned her and they have returned her to her biological parents. She said that as Cambodia now recognises the relationship with her biological parents the Australian government should also recognise this relationship and allow her to look after her biological parents in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether, at the time of the application, the first-named visa applicant was the parent of the review applicant.

22. The basis of the relationship between the review applicant and her adoptive parents was that she was customarily adopted by them in 1982–1983. After that time, the review applicant and her adoptive parents had no contact with the review applicant’s biological parents until 2004. It was on the basis that the review applicant had been customarily adopted that she was included as a member of the family unit of her adoptive father when he and the other members of his family were granted visas to be able to immigrate to New Zealand.

23. There is no information which would indicate that the customary adoption that took place in Cambodia in 1982–1983 would have been considered to have anything but the same effect as formal adoption arrangements if the social and political situation in Cambodia at that time would have allowed such processes to be put in place. There is no information that the customary adoption of the review applicant by her adoptive parents did not sever the legal relationship she had with her biological parents or any responsibility or authority they had over her. As a result of this, the adoptive parents were able to apply for on behalf of the review applicant a Cambodian passport which recognised her adoptive parents as her legal parents.

24. There is no information that would indicate that customary adoption in Cambodia would recognise a person having more than one set of parents or that the customary adoption would not sever the legal relationship between the child and the child’s biological parents. The Tribunal finds that after the review applicant was customarily adopted by her adoptive parents in 1983 the only legal parents the review applicant had were her adoptive parents. The legal relationship she had with her biological parents was then severed. For this reason the review applicant was considered a member of the family unit of her adoptive parents and her adoptive parents were able to obtain a passport for her and remove her from Cambodia to immigrate to New Zealand without the consent or knowledge of her biological parents. This was the legal position of the review applicant from 1983 and continued until after she turned 18 years of age.

25. The review applicant established contact again with her biological parents in 2004. Although she developed a personal relationship with her biological parents, the legal position of the review applicant was that she remained the legal child of her adoptive parents and of them alone.

26. The current application was filed on 25 June 2013. At that time, there is nothing to show that the review applicant had severed her relationship with her adoptive parents. The review applicant’s certificate of marriage dated 28 November 2010, six years after she had re-established contact with her biological parents, stated that her parents were her adoptive parents. The statement the review applicant provided to the Department dated 18 September 2015, when this issue was queried, confirmed that she was adopted. No information was provided which would indicate that at the time of the application that adoption arrangement had been severed or that the review applicant was not the child of her adoptive parents. The statement made by her adoptive father dated 25 May 2015 confirms the fact that the review applicant was adopted by him and does not provide any information which would indicate that the adoption arrangement had been severed.

27. The first time that it was claimed that the adoption of the review applicant with her adoptive parents had been severed was in the letter from her adoptive father dated 7 December 2015, two years after the application was made. The first time any legal process was taken in Cambodia to terminate the adoption and have the review applicant declared to be the legal child of her biological parents was when the review applicant and her biological parents made an application to the courts in Cambodia in 2015. An order was made by the court on 10 November 2016, three years after the application was made.

28. The Tribunal does not comment on the validity of the action taken by the review applicant and her biological parents to terminate the adoption arrangement with the review applicant’s adoptive parents. There are questions with respect to the validity of the action taken by the parties in light of the fact that the review applicant was aged over 18 years at the time that application was made and the fact that the review applicant was domiciled in Australia at the time and yet the application was made in Cambodia. It is not necessary for the Tribunal to comment on the validity of those orders in respect of this decision. What is clear, however, is that at the time of the application the review applicant was the adopted child of her adoptive parents, that this relationship was recognised by the review applicant, her adoptive parents and her biological parents at that time, and no action had been taken at that time to have the child–parent relationship she had with her adoptive parents terminated.

29. The criteria in cl.173.211 that must be satisfied at the time of the application are that the visa applicant is a parent of a person (the child who is the review applicant) who is a settled Australian citizen or a settled Australian permanent resident or a settled eligible New Zealand citizen. The Tribunal finds that at the time of the application the review applicant was the child of her adoptive parents. The Tribunal finds that the review applicant had been adopted by her adoptive parents and the legal relationship she had with her biological parents had been severed. There is no information at the time of the application that under customary adoption in Cambodia that any other parent–child relationship would be recognised other than the relationship between her adoptive parents and the review applicant. No action had been taken under Cambodian law or the law of any other country to terminate the review applicant’s relationship with her adoptive parents at the time of the application.

30. Accordingly, as the Tribunal finds that at the time of the application the review applicant was the child of her adoptive parents alone, the Tribunal finds that at the time of the application the first-named visa applicant was not the parent of the review applicant and therefore the criteria in cl.173.211 are not met.

31. As the visa applicant does not meet these criteria the Tribunal must affirm the decision under review. As the application of the second-named visa applicant is dependent upon her being a member of the family unit of a person who meets the primary criteria, the decision to refuse the application of the second-named visa application must also be affirmed.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Class UT) visas.

    Hugh Sanderson
    Member