Jiang (Migration)

[2023] AATA 451

Jiang (Migration) [2023] AATA 451 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Yan Jiang

VISA APPLICANT:  Miss Xinyi Jiang

REPRESENTATIVE:  Mr Ziting Lei (MARN: 1572416)

CASE NUMBER:  2201454

HOME AFFAIRS REFERENCE(S):          CLF2020/16181

MEMBER:Moira Brophy

DATE:6 February 2023

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 06 February 2023 at 1:29pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – formal and legal adoption in another country – registration with a relevant competent authority – 12 months residential requirements – review applicant was not residing in China – Adoption Order not a notarised copy – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 102.211; rr 1.03, 1.04

CASES

Nguyet v MIEA [1997] 74 FCR 422

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 9 December 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 13 April 2020. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 102 (Adoption).

3. The criteria for a Subclass 102 visa are set out in Part 102 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The Subclass 102 (Adoption) visa is designed for an offshore visa applicant who has been adopted or is a 'child for adoption' by a person who is, or a couple where at least one of whom is, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen at the time of adoption. Alternatively, an offshore visa applicant who is an adopted child may also meet the requirements for a Subclass 101 (Child) visa, but s/he must have been adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became one.

4. The delegate refused to grant the visa on the basis that cl 102.211 was not met because the applicant was not able to show the adoption had been in accordance with reg 1.04 of the Regulations. Sub-regulation 1.04 (1)(b) requires the applicant to be formally adopted in accordance with the law of another country where the persons recognised by the law as parents of the adoptee cease to be recognised and adopters become recognised as the parents of the child. This in effect severs all legal ties between the child and the birth parents. While the sponsor provided an adoption registration certificate from China, there was available no record of the adoption from the relevant competent authority. As the adoption in China was not registered and completed, the delegate determined the applicant was not able to meet these criteria. 

5. The Tribunal determined Miss Yan Jiang was the review applicant in this matter.

6. The review applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal also took evidence from Mr Lihao Mu, the husband of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

9. The visa applicant, Miss Xinyi Jiang was born in China on 17 June 2010. She currently resides in China with her biological parents. Prior to 2019, she lived with the parents of the review applicant. The visa applicant is the biological daughter of the review applicant’s brother and sister-in-law.

10. The review applicant told the Tribunal she originally came to Australia on 7 May 2006 as the holder of a Business (Short Stay) (Subclass456) visa. She was granted a Partner Permanent (Subclass 801) visa on 8 March 2011. She was granted a Resident Return (Subclass 155) visa on 4 March 2016 and a further Resident Return (Subclass 155) visa on 24 February 2021. She is a Permanent Resident of Australia. Between May 2006 and 22 May 2011, the review applicant did not depart Australia.

11. The husband of the review applicant, Mr Lihao Mu was granted a Business (Short Stay) (Subclass 456) visa on 27 June 2007 and he arrived in Australia on 4 July 2007. On 22 June 2009, Mr Mu was granted a [permanent] visa. He became an Australian citizen on 26 January 2012. Between 2007 when he arrived in Australia and 26 February 2012, Mr Mu did not depart Australia.

12. On 6 September 2022, the applicant submitted the following:

    ·     Submission for Xinyi JIANG

    ·     Passport Bio Data Page – visa applicant;

    ·     Passport Bio Data Page – review applicant;

    ·     Permanent Visa Grant – review applicant;

    ·     Passport Bio Data Page – Mr Lihao Mu;

    ·     Marriage Certificate – review applicant;

    ·     Statutory Declaration dated 20 July 2021 – review applicant and Mr Lihao Mu;

    ·     Certificate of Adoption Registration;

    ·     Certified Household Register;

    ·     Funds Transfer Records;

    ·     Statutory Declaration dated 20 July 2021 – review applicant;

    ·     Wechat Chat Records;

    ·     Medical Evidence – review applicant;

    ·     Photos of the Applicant and parents;

    ·     Statutory Declaration dated 6 September 2022 – review applicant;

    ·     Statutory Declaration dated 6 September 2022 – review applicant; and

    ·     Personal statement dated 5 September 2022 – Mr Lei Jiang.

13. The review applicant told the Tribunal she and Mr Mu were married on 14 October 1997. They had initially hoped to have children but experienced fertility issues. When they learned the brother of the review applicant and his wife were expecting their second child, they initiated discussions with them about the possibility of adoption. In May 2011 they commenced the adoption process in that the review applicant said she went to the Agency she needed to go to and asked what documentation she was required to provide. She said it was a government agency specifically to deal with the adoption of children. She said she cannot now recall what they asked for, but she did recall providing a household registration. She said that was provided because the registration showed she and the visa applicant were in the same household and she was the sister of the child’s biological father. She said she also recalled providing a copy of her marriage certificate. She said she was not asked for her documentation relating to her residency status in Australia. At the time she was, as she is now, a permanent resident of Australia and a citizen of China. She was not asked if she had a Power of Attorney to act on behalf of her husband. She said she had taken notes at the time of what documents she was asked to provide. She had been accompanied by her brother and his wife.

14. The review applicant was later called to pick up the Adoption Certificate dated 3 June 2011, a copy of which was shown at the time of hearing.

15. The review applicant told the Tribunal that in 2018 at the time of assembling the documentation for this application, she had applied for a copy of the Adoption papers so she could have them certified by a Public Notary. It was then she was advised by a staff member that there was no record of the adoption having been registered. When asked what enquiries had been undertaken to ascertain why there was no record held of the adoption, the review applicant said she had been to the Municipal Bureau of Civil Affairs of Contai in Handan City and they could only tell her there was no record held. That was the same place where the review applicant claimed to have registered the adoption. The review applicant said she had gone back again a few days later and she said she had given to them the copy of the Adoption Certificate she had but they still said there was no record held of the adoption and refused to certify the copy she had. She said that despite her best efforts, she was not able to obtain the original document.

16. The review applicant told the Tribunal her parents were originally caring for the visa applicant, but she was now living with her biological parents and two biological sisters as her parents were getting too old to care for her and there was no one else with the capacity to care for a young child. The review applicant said she provides financially for the visa applicant’s care. She said she does not provide a fixed amount but provides funds as needed. The review applicant said she spends about two months each year in China so she can spend time with the visa applicant. When apart, they stay in touch using video calls and WeChat.

17. The review applicant discussed with the Tribunal her current treatment for her diagnosed ovarian cancer. She said she had currently completed the chemotherapy and immunotherapy treatment. She felt her physical health would benefit if the visa applicant were allowed to come to Australia. A constant source of stress and angst would be removed from her life.

18. Additional time was granted for the review applicant to produce any further evidence she may wish to rely on.

19. On 29 September 2022, the Tribunal received a translated copy of a letter written by the review applicant setting out the history of her relationship with the visa applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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. 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.

21. The visa applicant, Miss Xinyi Jiang had applied for the visa on the basis she is the adopted child of the review applicant, Miss Yan Jiang, an Australian permanent resident.

22. The Tribunal is satisfied cl 102.211 is applicable in this matter and it relevantly provides:

    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.

    Subclauses (3), (4) and (5) are not applicable in this case.

23. The specific definition of ‘adoption’ applies wherever the term appears in the Regulations. Regulation 1.03 provides that ‘adoption’ has the meaning set out in reg 1.04 and the words ‘adopt’ and ‘adopted’ have corresponding meanings.

24. The Tribunal is satisfied from the documents provided the visa applicant was born on 17 June 2010 and had not at the time of application turned 18. She therefore meets cl 102.211(2)(a).

25. The Tribunal then considered whether she met cl 102.211(2)(b). Sub-regulation 1.04(1)(b) requires the applicant to be formally adopted in accordance with the law of another country where the persons recognised by the law as the parents of the adoptee cease to be recognised, and adopters become recognised as the parents of the child. This in effect severs all legal ties between the child and the birth parents.

26. The Tribunal was satisfied from the documents provided that at the time the adoption was purported to have taken place, the review applicant was a Permanent resident of Australia. She was granted a Partner Temporary (Subclass 820) visa on 8 March 2011 and a Partner Permanent (Subclass 801) visa on the same day. Mr Mu was at the time also a Permanent resident (subclass 456). The Tribunal finds the visa applicant meets cl 102.211(b)(i).

27. When considering whether the visa applicant was able to meet the requirements of cl 102.211(2)(b), the Tribunal considered Adoption law of Peoples Republic of China ( These laws were introduced in 1991 and amended in 1998. Foreign nationals wishing to adopt a child are required to follow Article 21 of the 1998 amendment which includes providing a range of supporting material certified by an appropriate agency from their country of nationality. Article 10 states that where a person with a spouse adopts a child, the husband and wife shall adopt the child in concert. As was previously noted, Mr Mu was not in China at the time the claimed registration took place. His evidence at the hearing and in his statutory declaration dated 20 July 2021 was that at the time his wife was in China and had gone to register the adoption, she had advised that Mr Mu was unable to be with her and he had been contacted by telephone by a ‘Mr Liu’ and that he gave his consent verbally.

28. The difficultly as was discussed with the review applicant and Mr Mu at the time of hearing was that they were not able to provide any evidence to corroborate their submission of the adoption having been registered in China. While the Tribunal has before it a copy of the Adoption Order dated 3 June 2011, the Tribunal was mindful that checks carried out by the Department with competent authorities in China disclosed the adoption did not exist in the relevant database. The review applicant had been put on notice by the Department that these checks had been carried out and she had been provided with the opportunity to comment. As was discussed at the time of hearing, the available copy of the Adoption Order was not a notarised copy as was required for the visa application and it was at the time of seeking a notarised copy in July 2018 that the review applicant was informed the copy she provided could not be notarised because it could not be verified against the original held on file as there was no original held on file.

29. The review applicant was not able to provide evidence of any of the requisite formalities of the adoption such as registration having been fulfilled and accordingly the Tribunal is not satisfied that there have been formal adoption arrangements that were made in accordance with Chinese law. It follows that an essential element of cl 102.211(2)(b) is not satisfied.

30. Even if the adoption certificate was available and found to be issued in accordance with Chinese law, the review applicant and Mr Mu would still not satisfy cl 102.211(2) because the review applicant and Mr Mu need to satisfy certain residential requirements. the review applicant was on notice of this being an issue prior to hearing as it had been part of the delegate’s decision and submissions had been made on this aspect of the decision.

31. Clause 102.211(2)(b)(ii) requires that the visa applicant was adopted by a person who “had been residing overseas for more than 12 months at the time of application”.

32. The visa application was lodged on 13 April 2020. The Department's movement records show the review applicant had been outside Australia from

    ·     22 May 2011 to 9 June 2011;

    ·     26 February 2012 to 26 March 2012;

    ·     1 January 2013 to 19 February 2013;

    ·     29 December 2013 to 23 February 2014;

    ·     29 December 2014 to 28 February 2015;

    ·     9 March 2016 to 12 May 2016;

    ·     30 August 2016 to 19 September 2016;

    ·     5 August 2017 to 28 March 2018;

    ·     25 July 2018 to 16 April 2019; and

    ·     28 April 2019 to 26 September 2019.

33. These dates are in accordance with the statutory declaration of the review applicant provided to the Tribunal on 6 September 2022.

34. Movement records for Mr Mu show that he was outside Australia from:

    ·     26 February 2012 to 26 March 2012;

    ·     1 January 2013 to 19 February 2013;

    ·      29 December 2013 to 23 February 2014;

    ·     29 December 2014 to 28 February 2015;

    ·     9 March 2016 to 12 May 2016;

    ·     30 August 2016 to 19 September 2016;

    ·     5 August 2017 to 28 March 2018;

    ·     25 July 2018 to16 April 2019; and

    ·     28 April 2019 to 26 September 2019.

35. The Tribunal accepts that both the review applicant and Mr Mu are both from China and in their lifetimes have obviously spent more than 12 months in China. In Nguyet v MIEA [1997] 74 FCR 422, the Federal Court considered a slightly different claim in the context of a previous, similarly worded version of the provision. At any rate, in reaching its finding, the Court used the exact wording of the current provision:

    It was submitted on behalf of the applicant that this requirement is satisfied where the “adoptive parent” has recited overseas for more than 12 months at “any time before” the application. This construction of reg 46(a)(ii)(A) is rejected. On its proper construction, it is necessary that for at least the 12 months prior to the time of the application, the applicant be residing overseas. It is not sufficient if the applicant has had, at some earlier time, a period of more than 12 months overseas residence….

36. The Tribunal also noted Departmental guidelines (PAM3) state that “for cl 102.211(2)(b)(ii) to be satisfied, it is necessary only that the adoptive parent be residing in any country (or countries) other than Australia for the 12 months prior to lodging the visa application”.

37. The Tribunal finds that cl 102.211(2)(b)(ii) be given its meaning as expressed in the Department's policy and in case law, i.e. that the adoptive parent(s) had to have been living overseas for 12 months at the time of the visa application.

38. In this case, the evidence is clear that the review applicant and Mr Mu had not been residing overseas for more than 12 months at the time of the visa application.

39. It follows then that the review applicant and Mr Mu do not satisfy cl 102.211(2)(b)(ii). As a consequence, the visa applicant does not meet an essential criterion for the grant of subclass 102 visa.

40. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 101 and Subclass 117).

    DECISION

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

    Moira Brophy
    Member