Jiang (Migration)

This matter concerned a review of a decision regarding a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption). The review applicant, Ms Yan Jiang, sought to have her niece, Miss Xinyi Jiang, granted the visa on the basis of adoption. The visa applicant, Miss Xinyi Jiang, was born in China and resided there with her biological parents. The review applicant, an Australian permanent resident, claimed to have adopted Miss Xinyi Jiang.

The primary legal issues before the Tribunal were whether the visa applicant met the requirements of subclause 102.211(2) of the Migration Regulations 1994, specifically concerning the definition of an overseas adoption and the lawful acquisition of parental rights. The Tribunal was required to determine if the adoption was formalised in accordance with the law of another country, such that the birth parents' legal ties were severed and the adoptive parents' rights were established. A further consideration was whether the adoptive parent had resided overseas for more than 12 months at the time of the visa application and whether this residence was contrived to circumvent Australian entry requirements.

The Tribunal considered that for an adoption to be recognised for migration purposes without Australian competent authority involvement, it typically falls under the category of an expatriate (private overseas) adoption. This requires the adoptive parent to have been living outside Australia for more than 12 months at the time of the visa application. The Tribunal noted that the review applicant was a permanent resident of Australia at the time the adoption process commenced in May 2011. While the review applicant provided documentation including a Certificate of Adoption Registration and a Certified Household Register, the Tribunal found that the adoption order was not a notarised copy and that the review applicant had not resided in China for the requisite 12 months prior to the application. Crucially, the Tribunal found that the review applicant's residence overseas was not established in a manner that would satisfy the requirements for an expatriate adoption, and therefore the conditions for lawful acquisition of full and permanent parental rights were not met in accordance with the regulations.

The Tribunal concluded that the decision under review should be affirmed.