Huynh (Migration)

[2020] AATA 2909

Huynh (Migration) [2020] AATA 2909 (3 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Quy Thi Huynh

VISA APPLICANT:  Ms Hoang Phuong Vy Vo

CASE NUMBER:  1904052

DIBP REFERENCE(S):  OSF2017/019691

MEMBER:Adrienne Millbank

DATE:3 July 2020

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision not to grant the visa applicant an Adoption (Subclass 102) visa.

Statement made on 03 July 2020 at 5:04pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – applicant niece of sponsor, with parents alive – applicant a minor at time of application, now an adult – relevant criteria require applicant has not turned 18 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 13 December 2018 to refuse to grant the visa applicant a Class AH (Child (Migrant)) visa, specifically an Adoption (Subclass 102) visa, under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant was born in Vietnam on 6 May 2000. She was 17 years old at the time of application and is 20 years old at the time of decision. The prospective adoptive parent and review applicant (the sponsor) is an Australian citizen who migrated from Vietnam in 2004 on a Partner visa. The visa applicant is the niece of the sponsor.

3. The visa applicant applied for the visa on 24 October 2017. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.102.211 and therefore cl.102.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Subclass 102 criteria are attached to this decision.

4. Clause 102.211(1) in Schedule 2 to the Regulations requires that, at the time of application, the visa applicant meets the requirements of cl.102.211(2), (3), (4) or (5). The delegate did not assess the application against the requirements of cl.102.211(3), (4) or (5), as the visa applicant did not meet the requirements of an Other state/territory arranged adoption (cl.102.211(3)); an Adoption Convention adoption and Bilateral adoption arrangements (cl.102.211(4)); or a Third country Hague Adoption Convention adoption (cl.102.211(5)).

5. The delegate found that the visa applicant did not meet cl.102.211(2)(b)(i), which requires that the visa applicant was adopted overseas by a person who was, at the time of adoption, an Australian citizen, permanent resident or eligible New Zealand citizen. The delegate also found that the visa applicant did not meet cl.102.211(2)(b)(ii), which requires that the visa applicant was adopted overseas by a person who had been residing overseas for more than 12 months at the time of application.

6. The decision records that the sponsor had provided evidence to the Department that she adopted the visa applicant in Vietnam, at the district ward level, on 2 August 2013 when the visa applicant was 13 years of age. The delegate noted that under Vietnamese law, only People’s Committees of provinces or centrally run cities in which the persons introduced for adoption or adopting persons permanently reside, are competent to decide on and register intercountry adoptions. The delegate considered the sponsor’s response to this adverse information, namely, that she registered the adoption as a Vietnamese citizen, and therefore only had to register it at the ward level. The delegate was not satisfied that the visa applicant’s adoption met the definition of adoption as defined by r.1.04 of the Regulations. The delegate noted that the sponsor was an Australian citizen at the time of the adoption, having been granted Australian citizenship on 8 June 2012.

7. The delegate further found that the sponsor had not resided overseas for more than 12 months at the time of the application as required by cl.102.211(2)(b)(ii). Based on the sponsor’s travel records, she had last arrived in Australia on 4 September 2016 and had not departed since that time. The delegate considered the sponsor’s response to this adverse information, namely, that she lived in Vietnam for lengthy periods during the four years from 2004 to 2008 when her son was born; she took care of the visa applicant at that time; and she did not know how to bring the visa applicant to Australia until she adopted her in 2013.

8. A hearing scheduled for 3 March 2020 was cancelled at the request of the sponsor, who provided medical evidence that she was undergoing treatment for endometrial cancer. An offer of a telephone hearing scheduled for 24 March 2020 was declined by the sponsor, because she was undergoing chemotherapy treatment, found it hard to concentrate and understand conversation on the telephone, and preferred a face-to-face hearing.

9. The hearing was held during the COVID-19 pandemic. The Tribunal had regard to the individual circumstances of the sponsor. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was to be conducted in person. The Tribunal took account of a medical certificate signed by the sponsor’s oncologist, certifying that the sponsor was ‘unfit to perform work duties’ from 20 March 2020 to 20 June 2020. The Tribunal took account also of the fact that should the review be put on hold until in-person hearings resumed, the visa applicant would still not satisfy the criterion. The sponsor consented to a video hearing scheduled for 22 June 2020.

10. The sponsor appeared before the Tribunal on 22 June 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

11. Prior to the hearing, on 19 June 2020, the sponsor asked the Tribunal if she could have before the hearing the questions that would be asked during the hearing. The Tribunal did not provide the sponsor with its questions before the hearing, but advised her that she could, at the hearing, seek extra time to provide responses, and she could seek an adjournment during the hearing if she felt unwell.

12. The sponsor did not seek an adjournment, and the Tribunal is satisfied that she was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the requirements of cl.102.211 and cl.102.221 are met. At the hearing, the Tribunal put the sponsor on notice that while the delegate had refused the application on the grounds that the visa applicant did not meet the criteria in cl.102.211(2)(b)(i) and cl.102.211(2)(b)(ii), the Tribunal could make a decision to refuse the application on the grounds that the visa applicant did not meet another criterion for the visa.

15. The Tribunal advised the sponsor that it appeared on the evidence before it that the visa applicant did not meet cl.102.221, which requires that at the time of decision the visa applicant continues to satisfy the criteria in cls.102.211 and 102.213. The Tribunal advised the sponsor that it appeared that the visa applicant did not continue to satisfy cl.102.211(2)(a), cl.102.211(3)(a), cl.102.211(4)(a) or cl.102.211(5)(a), because they all require that the visa applicant has not turned 18 years of age. At the time of decision, as noted, and as acknowledged by the sponsor, the applicant is 20 years old. Therefore, it appeared that the applicant did not meet cl.102.221.

16. In a written submission provided to the Tribunal, and at hearing, the sponsor stated that she had researched and understood the requirements for an Adoption (Subclass 102) visa. She stated that she knew, as the sponsor, she didn’t meet the 12-month living-overseas requirement. She stated that she did spend a considerable amount of time coming and going between Vietnam and Australia when her son was born in 2004, and that she cared for the visa applicant in Vietnam at this time. She stated that the procedures involved in overseas adoptions are complicated, onerous and lengthy, and it was easier for her to adopt her niece as a Vietnamese citizen.

17. Regarding the age requirement, the sponsor argued that the visa applicant was 17 years of age at the time of application, and the fact she is now 20 is the result of delays caused by the Department and the Tribunal, not by her or the visa applicant. Therefore, the age requirement should be applied with flexibility and understanding.

18. The Tribunal asked the sponsor why she was pursuing the review, as the visa applicant is now an adult and no longer in need of parental care. The Tribunal put to the sponsor that, as she and her husband are both in their fifties and dealing with serious illnesses, their focus might be expected to be on caring for each other. The sponsor stated that she needs her niece to be in Australia with her so her niece can provide her with companionship and support. She acknowledged that her son and husband live with her, but stated she needs the company and support of a female relative. She stated that her sister from Vietnam is currently living with her, but only holds a temporary (bridging) visa pending processing of an application to renew her visitor visa.

19. The sponsor advised that the visa applicant is still living with the visa applicant’s biological parents in Vietnam, while studying at university. She stated that she financially contributes to the visa applicant’s study costs. The Tribunal advised the sponsor that it was unable to provide advice regarding visa applications, but nevertheless suggested there might be other options she and the visa applicant might explore for the visa applicant to spend time with her in Australia. The sponsor indicated that she has explored other options. She stated that she considered visitor visas unsatisfactory because of their time limits and the nuisance of having to extend them, and she considered student visas too expensive. She asked the Tribunal to consider the compassionate aspects of her case, namely, that she is ill and needs the companionship and support of a female relative.

20. The Tribunal advised the sponsor that however sympathetic it might be towards her circumstances it had to apply the migration law, and had no discretion in this matter.

21. Clause 102.221 requires that the applicant continues to satisfy the criteria in cl.102.211. Clause 102.211(1) requires that the applicant meets the requirements of subclause 102.211(2), (3), (4) or (5). Clauses 102.211(2)(a), 102.211(3)(a), 102.211(4)(a) and 102.211(5)(a) all require that the applicant has not turned 18 years of age. The visa applicant has turned 20.

22. Therefore, the visa applicant does not continue to satisfy the criteria in cl.102.211. Therefore, the visa applicant does not meet cl.102.221.

23. No claim was made or information before the Tribunal to indicate that the visa applicant meets the requirements for any other subclass of a Class AH (Child (Migrant)) visa, namely, a Child (Subclass 101) visa or Orphan Relative (Subclass 117) visa.

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicant an Adoption (Subclass 102) visa.

    Adrienne Millbank
    Member

    
    

    ATTACHMENT – Extract from Migration Regulations 1994

    Subclass 102—Adoption

    102.21—Criteria to be satisfied at time of application

    102.211

    (1)  The applicant meets the requirements of subclause (2), (3), (4) or (5).
    (2)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has not turned 18; and

    (b)  the applicant was adopted overseas by a person who:

    (i)  was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
    (ii)  had been residing overseas for more than 12 months at the time of the application; and

    (c)  the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and
    (d)  the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.

    (3)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has not turned 18; and

    (b)  the applicant is resident in an overseas country; and

    (c)  either:

    (i)  a person who is not in a married relationship or de facto relationship, and who is an Australian citizen, a holder of a permanent visa  or an eligible New Zealand citizen has undertaken in writing to adopt the applicant; or
    (ii)  spouses or de facto partners, at least one of whom is an Australian citizen, a holder of a permanent visa  or an eligible New Zealand citizen, have undertaken in writing to adopt the applicant; and

    (d)  a competent authority in Australia:

    (i)  has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or
    (ii)  has approved the prospective adoptive parent and the spouse or de facto partner of the prospective adoptive parent as suitable adoptive parents for the applicant.

    (4)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has not turned 18; and

    (b)  the applicant is resident in an overseas country; and

    (c)  a competent authority in the overseas country has allocated the applicant for prospective adoption by a person who is an Australian citizen, a holder of a permanent visa  or an eligible New Zealand citizen, or such a person and that person's spouse or de facto partner; and

    (d)  either:

    (i)  arrangements for the adoption are in accordance with the Adoption Convention; or

    (ii)  the adoption is of a kind that may be accorded recognition by regulation 5 of the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998; and

    (e)  a competent authority in Australia:

    (i)  has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or
    (ii)  has approved the prospective adoptive parent and the spouse or de facto partner of the prospective adoptive parent as suitable adoptive parents for the applicant.

    (5)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has not turned 18; and

    (b)  the applicant was adopted in accordance with the Adoption Convention, in an Adoption Convention country, by a person who was an Australian citizen, a holder of a permanent visa  or an eligible New Zealand citizen when the adoption took place, or by such a person and that person's spouse or de facto partner.  

    Regulation 1.04 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