Lee (Migration)

[2023] AATA 1679

Lee (Migration) [2023] AATA 1679 (2 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sherry Lee

VISA APPLICANT:  Miss Huaxin Li

CASE NUMBER:  2108466

HOME AFFAIRS REFERENCE(S):          2019031817

MEMBER:Kira Raif

DATE:2 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 102 (Adoption) visa:

·cl.102.211 of Schedule 2 to the Regulations; and

·cl. 102.213 of Schedule 2 to the Regulations.

Statement made on 02 June 2023 at 12:10pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – overseas adoption – Chinese national settled abroad – de-registering of hukou and loss of citizenship – review applicant residing overseas for more than 12 months – formal adoption arrangement – return to Australia to obtain a different passport – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 102.211, 102.213, 102.221; rr 1.03, 1.04

CASES

Nguyet Huong Phung v MIEA (1997) 74 FCR 422   

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 28 June 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a national of China, born in January 2010. The visa applicant applied for the visa on 20 September 2019. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl. 102.211 and cl. 102.213. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained three subclasses: subclass 101 (Child); subclass 102 (Adoption) and subclass 117 (Orphan relative) – Item 1108 of Schedule 1 of the Regulations. The applicant sought to be assessed against the subclass 102 (Adoption) visa. There is no evidence before the Tribunal to suggest that the applicant meets any of the key criteria for the subclass 101 or subclass 117 visas.

5. In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). One of the issues in question in this case is cl 102.211 which is set out below:

   (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.

   …

6. Regulation 1.03 defines ‘a competent authority’ in relation to adoption. The term Adoption is defined in r. 1.04 as follows

   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 requirements.

7. Another requirement is contained in cl. 102.213 and provides that the laws relating to adoption of the country in which the child is normally resident have been complied with.

   Country information

8. Article 9 of the 1980 Nationality Law of the People's Republic of China provides that: “Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality”.[1] It has been noted that Article 9: “does not stipulate that all Chinese citizens who have acquired foreign nationality will automatically lose their Chinese and: “Instead, its application is limited to those who are “settled abroad” and have acquired foreign nationality ‘out of one’s own will’”.[2]

   [1] 'Nationality Law of the People's Republic of China', People's Republic of China: Government of, 10 September 1980, CX282388

   [2] Zhang, J. 'Interpreting “Settled Abroad” in China’s Nationality Law: Theory, Practice, and Problems', Columbia Journal of Asian Law, 17 August 2022, 20230221111229, p.288.

9. The leading authority on the meaning of “settled abroad” (said to have been derived or borrowed” from the 2009 Overseas Chinese Identities Provisions) includes that a person will be “settled abroad” if s/he: “resides and has been residing in the [foreign] country for two consecutive years, with a cumulative stay in the [foreign] country of not less than 18 months within the two years”[3] and that: “studying abroad (either at the expense of the government or one's own) or traveling abroad on official duty (including labor dispatch) does not count”.[4]

   [3] And see: Liu, J.M. “Citizenship on the move: the deprivation and restoration of emigrants’ hukou in China”, Journal Of Ethnic And Migration Studies, vol. 47, no. 3, 2021, 20220817144402, p.563.

   [4] Zhang, J. 'Interpreting “Settled Abroad” in China’s Nationality Law: Theory, Practice, and Problems', Columbia Journal of Asian Law, 17 August 2022, 20230221111229, p.276.

10. It is also reported that no uniform application has developed in practice to the meaning of “settled abroad”,[5] and different approaches have been taken. It is also reported that the actual enforcement of this is uneven;[6] although some scrutiny does reportedly take place through monitoring of household registration (hukou) and also by airport authorities scrutinising Chinese passport holders (absence of a visa for the country of stay being an indication of having obtained residency abroad),[7] and by encouraging the public to report cases of Chinese nationals holding dual nationality through an online platform.[8]

    [5] Zhang, J. 'Interpreting “Settled Abroad” in China’s Nationality Law: Theory, Practice, and Problems', Columbia Journal of Asian Law, 17 August 2022, 20230221111229, p.278; Liu, J.M. “Citizenship on the move: the deprivation and restoration of emigrants’ hukou in China”, Journal Of Ethnic And Migration Studies, vol. 47, no. 3, 2021, 20220817144402, p.563

    [6] Zhang, J. 'Interpreting “Settled Abroad” in China’s Nationality Law: Theory, Practice, and Problems', Columbia Journal of Asian Law, 17 August 2022, 20230221111229, pp.294-295, 317; Liu, J.M. “Citizenship on the move: the deprivation and restoration of emigrants’ hukou in China”, Journal Of Ethnic And Migration Studies, vol. 47, no. 3, 2021, 20220817144402, p.564;

    [7] Liu, J.M. “Citizenship on the move: the deprivation and restoration of emigrants’ hukou in China”, Journal Of Ethnic And Migration Studies, vol. 47, no. 3, 2021, 20220817144402, pp.566-567.

    [8] Low, C.C., 'Report on Citizenship Law: China and Taiwan', Robert Schuman Centre for Advanced Studies, 01 October 2016, 20190212133821, p.13.

11. A January 2021[9] article by Jiaqi M. Liu in the Journal of Ethnic And Migration Studies states that China: “is not satisfied with a ban on dual nationality alone, but actively seeks to prohibit dual residency altogether”. The article provides commentary on how “settled abroad” has been interpreted, and it also provides information (resulting from research into the situation in Wuse County) about the methods China’s authorities have employed to scrutinise whether persons have “settled abroad” with a view to de-registering such a person’s hukou (household registration). The article appears to consider that the de-registering of hukou effectively equates to citizenship deprivation. Oddly, and except in its discussion of Article 9 of China’s Nationality Law, the article makes no mention of whether the authorities scrutinise whether such persons have obtained foreign nationality (as opposed to being merely “Overseas Chinese”).

    By precluding dual nationality, China exerts full control over mono-nationals as the sole sovereign state of nationality. According to article 9 of China’s Nationality Law, Chinese nationals who obtain a foreign nationality autonomically lose their Chinese nationality. Hence, emigrants who retain their Chinese nationality usually rely on foreign permanent or long-term residency to reside abroad, while using their Chinese passports to enter and exit China. Nonetheless, the Chinese state is not satisfied with a ban on dual nationality alone, but actively seeks to prohibit dual residency altogether. On the one hand, it withdraws the hukou of emigrants who have established residency abroad, thus forbidding their second residency in China. On the other hand, the state conditions citizenship restoration upon the revocation of foreign residency, ensuring that returnees have Chinese residency only.

    Depriving absent members of citizenship

    The citizenship deprivation policy stemmed from the 1958 Household Registration Regulation, the very regulation that created the hukou system. Its article 10 provides that citizens who move out of the jurisdiction where their hukou is registered have to register their out migration and withdraw their original hukou. This stipulation, however, targeted domestic migrants within China, instead of transborder migrants, given the fact that emigration abroad was considered as a betrayal of the socialist regime and therefore seldom took place in the Maoist era (Xiang 2003). It was not until the onset of the economic reform in the early 1980s that two legal documents eventually opened up legal channels for Chinese citizens to emigrate abroad (Ministry of Public Security 1984; Overseas Chinese Affairs Office, Ministry of Foreign Affairs, and Ministry of Public Security 1982). Then the question of whether this stipulation also applies to transborder migrants ensued.

    The 1986 Administrative Law on the Exit and Entry of Citizens (hereafter 1986 Exit and Entry Law) provided the answer. It was the first national law that offered the institutional scaffoldings for Chinese citizens’ freedom of emigration, while hinting at their limited right of return. Its article 10 obliged Chinese nationals abroad to ‘apply for return’ (emphasis added), implying that return was conditioned upon permission from the state. This requirement was further spelled out in the 1986 administrative rule on the implementation of the 1986 Exit and Entry Law. Its article 7 provided that Chinese nationals who have ‘settled down abroad’ (dingju) have to withdraw their local hukou and that migrants who plan to return to China have to first apply for their return and then restore their hukou in the home locality.

    Nonetheless, official definitions of ‘settle down abroad’ have oscillated in a variegated array of legal documents published as early as 1957. That year, a legal document used the term ‘sojourn’ (qiaoju) in determining whether emigration was established (Overseas Chinese Affairs Commission 1957). The concept of ‘sojourn’, however, was cloaked in ideological and geopolitical considerations of the nascent communist regime, as the criteria for ‘sojourn’ were closely associated with the political backgrounds of emigrants. Since the 1980s, economic pragmatism began to occupy the central place of the member ship politics in reformist China. As a consequence, the overall tendency has been to adopt increasingly specific and narrower definitions for ‘settle down abroad’.

    In 1984, an amendment to the 1957 document clearly defined ‘settle down abroad’ as ‘having obtained the right of residency, or having resided and earned a living abroad’, rendering all emigrants susceptible to citizenship deprivation, regardless of how long they have resided abroad or what their legal statuses are (Overseas Chinese Affairs Office 1984). In 2005, a legal explanation narrowed the definition of ‘settle down abroad’ to ‘having obtained a long-term or permanent residency permit’, thus exempting those holding short-term residency permits from citizenship revocation (Overseas Chinese Affairs Office 2005). In 2009, this definition was further narrowed down, adding the additional requirement of actual residence abroad for over eighteen months in two consecutive years (Overseas Chinese Affairs Office 2009). Hence, emigrants who hold residency permits abroad but do not actually reside abroad can still avoid losing hukou. Notwithstanding the continuous narrowing of citizenship deprivation definitions over time, the bulk of emigrants are still subject to this policy as long as they reside abroad for a prolonged period.

    It remains equivocal, however, to what extent citizenship deprivation policies are still valid or actually enforced on the ground. The 1986 Exit and Entry Law was abolished by the 2012 Exit-Entry Administration Law, which is the current primary migration statute in China. The 2012 new law does not explicitly require citizenship deprivation after emigrants establish foreign residency and its more specific administrative implementation rules had not been issued as of May 2020. But it can be implied that citizenship deprivation is still mandatory. According to a legal explanation, provisions in the 1986 administrative rule remain valid, as long as they do not contradict with the 2012 Exit Entry Administration Law (Ministry of Public Security 2017). Given that the 2012 law contains a similar provision (article 13) akin to article 10 of the 1986 Law, it can be assumed that citizenship deprivation remains binding under the new law. Nevertheless, the hukou system is highly decentralised (Wu 2013) and the implementation of hukou revocation may vary in different localities. Local governments exert a varying degree of autonomy in designing local rules and implementing national policies based on local conditions. As I will demonstrate in the case of Wuse County, some localities with sizable emigrant communities may suspend the practice of citizenship revocations in order to facilitate emigration and return migration, running counter to the national policy.

    [9] Liu, J.M. “Citizenship on the move: the deprivation and restoration of emigrants’ hukou in China”, Journal Of Ethnic And Migration Studies, vol. 47, no. 3, 2021, 20220817144402.

    Consideration of claims and evidence

12. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant made the application for the Adoption visa in September 2019 and she was sponsored in that application by Ms Sherry Lee (aka Ms Xiaohong Li), who acquired Australian citizenship in September 2003 and is normally resident in Australia.

13. The visa applicant was born in 2010 and was under the age of 18 at the time the application was made. The Tribunal finds that the visa applicant was a national of China and was usually resident in China when the application was made.

14. The visa applicant does not claim, and there is no evidence that her adoption has been approved by a competent authority in Australia. The Tribunal is not satisfied the visa applicant meets cl 102.211(3) and (4). There is no evidence before the Tribunal that the visa applicant was adopted in accordance with the Adoption Convention, in an Adoption Convention country. The Tribunal is not satisfied the visa applicant meets cl. 102.211(5).

15. The visa applicant seeks to meet cl. 102.211(2). The visa applicant was born in 2010 and was under the age of 18 when the application was made. Information in the primary decision record indicates that the sponsor – who claims to be the adoptive parent of the visa applicant, was an Australian citizen since 2003. The Tribunal is satisfied that at the time of the claimed adoption, the sponsor was an Australian citizen.

16. The Tribunal must consider whether

    -the adoption complied with the requirements of r. 1.04 (cl. 102.211(2)),

    -the sponsor had been residing overseas for more than 12 months at the time of the application (cl. 102.211(2)(b)(ii));

    -the adoptive parent had lawfully acquired parental rights by the adoption (cl. 102.211(2)(d)); and

    -the laws relating to adoption of the country in which the child is normally resident (China) have been complied with (cl. 102.213).

    Was there adoption in accordance with the requirements of r. 1.04?

17. For the purpose of cl. 102.211(2), it is necessary to consider whether the adoption of the visa applicant was in accordance with r. 1.04. There is no evidence, and the applicant does not claim, that formal adoption arrangements were made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children. The Tribunal is not satisfied that r. 1.04(a) is met.

18. The visa applicant provided with her application evidence of formal adoption taking place in China. Having regard to that evidence, the Tribunal is not satisfied that formal adoption of the kind referred to in r. 1.04(1)(b) was not available under the law of China or that it was not reasonably practicable, noting that the sponsor did take steps to engage with the local authorities and to make formal arrangements for the adoption and it was not claimed it was not reasonably practicable for these steps to be taken. The Tribunal is not satisfied r. 1.04(c) is met.

19. The applicant relies on r. 1.04(b) and states that there was formal adoption arrangement made in accordance with the law of China.

20. The primary decision record indicates that the visa applicant provided with her application a copy of the Adoption Registration Certificate issued in China by the Adoption Registration Civil Affairs Bureau of Danzhou City. The adoption certificate states that the visa applicant was adopted by Xiahong Li, who was a citizen of China, in November 2013.

1. The delegate found that under the Adoption Law of China, foreigners seeking to adopt children in China must also comply with the Measures Registering Adoption of Children by Foreigners n the PRC (approved and promulgated in 1999). Article 2 of that Measure states that ‘if foreigners attempt to adopt children within the territory of the PRC, they shall undertake registration according to these measures’.

2. The delegate notes that the sponsor acquired the Australian citizenship in September 2003 but did not disclose her Australian citizenship to the Chinese government at the time of adoption in 2013 and did not disclose her change of name. The delegate found that the sponsor did not follow the legal process as stipulated by the Measure Registering Adoption of Children by Foreigners in the PRC and if she had declared her Australian citizenship, she would not have been legally allowed to adopt the child through the procedure that was followed. The delegate concluded that the visa applicant did not meet r. 1.04(b) and cl. 102.211(2)(b)(i), as well as cl. 102.213.

3. In her written submission to the Tribunal the review applicant states that she had no ‘hidden behaviour’ when not disclosing her Australian citizenship, noting that the Australian government accepts dual citizenship. She states that the local authority representative asked her to provide evidence of her Chinese nationality and told her they did not need to know if she had another nationality. She then followed all the formalities required by the law, such as completing the application form, publishing a notice of missing persons, receiving approval of the government official and the certificate of adoption. The applicant states that she lost her Chinese nationality in 2019 due to acquiring the Australian nationality (she provided to the Tribunal a copy of what she claims to be a formal notice to that effect) and states that there had to be a procedure before she lost her Chinese nationality. The applicant states that her friends in Australia knew she was an Australian national when they introduced her to the orphanage and the official in China told her that if she did not travel to China often, she may keep her nationality. (She claims she lost it due to the frequency of her travel to see the child.)

4. The applicant claims that she maintained her Chinese ID card and the loss of nationality does not occur automatically but requires a process to be completed. The review applicant provided to the Tribunal several statements that support her evidence concerning the circumstances of the adoption, as well as her ongoing support for the child. There are statements from the visa applicant’s school teachers, family members, community members and others. The Tribunal has had regard to that evidence.

5. The review applicant states that she had changed her name for ease of use at work and the official change of name occurred in December 2012, it was not connected to the adoption process. The applicant states that the adoption official knew that she lived in Australia but did not want to know about other nationalities and had only asked her for the Chinese identity documents. The applicant states that her only motivation in adopting is the best interests of the child. The applicant refers to her interactions with the child and she provided to the Tribunal a number of videos of the child. In a subsequent written submission to the Tribunal the review applicant refers to the child’s need to be reunited with her and she refers support and family that the child needs. The review applicant submits that the household registration was completed in 2017 so it was not done for migration purposes.

6. The Tribunal has considered whether the applicant retained her Chinese nationality at the time of adoption. The country information cited above suggests that China does not recognise dual nationality and that those who settle overseas forfeit their Chinese nationality. However, the reports also suggest that there is no uniform application in relation to the assessment of a Chinese national having “settled abroad” and that the actual enforcement of this is uneven.

7. The Tribunal is unable to make a positive determination as to when the review applicant lost her Chinese nationality. The Certificate of renunciation is dated 2019 but, as noted elsewhere, the Tribunal does not consider this to be necessarily the date when she had lost her Chinese nationality. Neither is it possible to determine with any degree of certainty that she lost her Chinese nationality upon acquisition of the Australian nationality, noting the information that the application of the law in China is inconsistent. The Tribunal is mindful that at the time of adoption, the applicant retained her hukou and ID card and these were shown to the officials during the adoption process. The Tribunal considers it at least possible that at the time of the adoption, the review applicant retained her Chinese nationality. If so, she would not have been considered a ‘foreigner’ by the Chinese authorities at the time of the adoption.

8. The Tribunal also notes the various statements from the officials and the person who introduced the review applicant to the orphanage, which all confirmed that the review applicant’s Australian nationality was declared to the officials at the time of adoption. 

9. Overall, the Tribunal has formed the view that it is possible that the review applicant had retained her Chinese nationality at the time of adoption, given that she retained her hukou and ID card and the renunciation certificate is dated some years later.  The Tribunal is also satisfied that the review applicant’s Australian nationality was disclosed during the adoption process. If the review applicant had retained her Chinese nationality, she may not have been considered as a ‘foreigner’ for the purpose of the adoption and would not have been required to comply with different adoption rules relating to foreigners. Thus, the Tribunal draws no adverse conclusions from the fact that the Adoption Certificate refers to the review applicant being a Chinese national as there is insufficient evidence before the Tribunal to indicate that information was incorrect or inaccurate at the time the certificate was issued.

   Was the sponsor resident overseas for more than 12 months at the time of the application?

10. The information in the primary decision record, a copy of which the review applicant provided to the Tribunal, indicates that the application was made in September 2019 and at that time, the sponsor had been outside of Australia for only 280 days. The delegate was not satisfied the sponsor had been resident overseas for more than 12 months immediately before the application was made. No explanation is provided in the primary decision record as to how that figure was arrived at.

11. In her written submissions to the Tribunal the review applicant states that she had spent over 830 days overseas at the time the application was made, having regard to the earlier periods of travel from 2013 and she notes that she continued to stay in China after the application was made until November 2019. The review applicant provided a list of her trips to China between December 2013 and the time of the application. The review applicant submits that she has been overseas for over 800 days at the time of the application and meets cl. 102.211(2)(b)(ii).

12. In her multiple submissions to the Tribunal the review applicant refers to her multiple trips to China and outlines the time she had spent in China, including over 311 days between August 2018 and June 2019 and over 60 days from September 2019 to November 2019.

13. In Nguyet Huong Phung v MIEA (1997) 74 FCR 422 the Court held that the 12 months overseas requirement required the 12 months or more to be prior to the time of application (impliedly, immediately prior to the time of application) and it was not sufficient if the adoptive parent has had, at some earlier time, a period of more than 12 months overseas residence (at 428). The language appears to suggest a single period of 12 months or more is required and not several periods amounting to 12 months or more.

14. If the reasoning in Nguyet is applied here, it is necessary for the applicant to establish that prior to September 2019, she had been residing overseas for more than 12 months in a single period. The Tribunal has considered the applicant’s movement records, which are consistent with the information provided by the applicant in her various submissions concerning her travel. These show that in addition to the 280 days to which the delegate refers (which relate to the applicant’s travel between March 2015 and September 2017, the applicant also travelled overseas between August 2018 and June 2019 and from September 2019 until November 2019, using a different passport number. It is not apparent that these periods had been considered by the delegate.

15. The applicant explained why she had to return to Australia for a variety of reasons in 2019. She states that in 2018 her passport was stolen in China and she had to replace her passport and she returned to Australia using a different passport.

16. The Tribunal finds that the applicant had spent about ten months in China between 11 August 2018 and 17 June 2019 in addition to the 280 days to which the delegate refers. As such, the Tribunal is satisfied the applicant had been living overseas for 12 months at the time the application was made.

    Did the adoption comply with the laws of China? (cl. 102.213)

17. The delegate found that the sponsor did not follow the legal process stipulated by the Measure Registering Adoption of Children by Foreigners in the PRC, stating that if she had  declared her Australian citizenship, the sponsor would not have been legally allowed the adopt the child through the procedure that was followed. The delegate concluded that the adoption met the requirements in r.1.04.

18. In her written submission to the Tribunal the review applicant states that she had complied with the laws of China as she had completed the application form, published a Notice in the newspaper, received approval from a government officer and a certificate of adoption. The applicant submits that she met the requirements of cl. 102.213.The review applicant submits that the delegate had misconstrued the nuances of the Chinese nationality law leading to the incorrect assumption that her acquisition of the Australian citizenship would result in the automatic loss of the Chinese nationality.

19. With respect to the above-cited law on China’s nationality, the applicant states that  the enforcement and interpretation of China’s nationality law can be complex and the authorities may not recognise the loss of Chinese nationality without proper documentation. That means that individuals who have acquired foreign citizenship may still be treated as Chinese nationals in certain situations, especially if they have not renounced the Chinese nationality and have not received the certificate of renunciation. The review applicant submits that she was a dual citizen at the time of adoption and was not classified as a foreigner at the time of the adoption. She sought, and was approved to renounce her Chinese nationality in 2019.

20. In oral evidence the applicant stated that the renunciation certificate was issued because she had cancelled her permanent hukou. She states that she had lost all her documents and it would have been too difficult to renew her hukou and she would have been asked too many questions. The applicant’s evidence indicates that the renunciation certificate was issued because the applicant had approached the authorities to cancel her hukou, not because the Chinese authorities regarded that date as the date when the applicant lost her Chinese nationality.

21. The applicant refers to the parent – child relationship she has with the visa applicant. She states that her Australian citizenship was irrelevant when the adoption took place and the official responsible for the adoption emphasised that he did not need to know her Australian nationality. The applicant stats that her ‘Chinese identity’ was ‘existing’ at the time of adoption, and not automatically lost. For example, she used her Chinese identity to register the household for her daughter. The applicant states that her Chinese nationality was lost in 2019, as evidenced by the Notice of Loss of Nationality. The applicant states that some of the documents had not been submitted or translated when the application was made. She refers to several articles about the nationality laws in China.

22. The applicant claims that the authorities knew she was from Australia and she did declare her Australian nationality but the officials were not interested. She states that her Chinese ID was valid at the time and she used her Chinese ID card to complete the paperwork. The Tribunal is mindful that even if true, the fact that a particular official completing the adoption process chose to overlook the applicant’s Australian nationality does not render the adoption lawful or in accordance with the laws of China.

23. The review applicant provided to the Tribunal a number of statements concerning her relationship with the visa applicant, statements in support by other parties, photographs of the child and evidence of her interactions with family members, teachers and others concerning the child. The Tribunal has had regard to that evidence.

24. Following the hearing, the Tribunal provided additional evidence to the Tribunal. The applicant presented a statement from Shenfei Fu, the former head of the Danzhou Children’s Welfare Institute between 2009 and 2020. It refers to the review applicant adopting the visa applicant in December 2013 after going through the adoption procedures from Danzhou Civil Affairs Bureau and the review applicant provided other statements regarding the adoption. A statement from the applicant’s friend who accompanied the applicant to the orphanage indicates that she did declare her Australian citizenship when going through the process.

25. Overall, the Tribunal accepts that the review applicant had declared her Australian nationality at the time of the adoption. This is consistent with the information in the various statements from the adoption officials, as well as those who accompanied the applicant and witnessed the process. There is no reason for the Tribunal to find that these statements are untruthful.

26. The Tribunal has found above that the review applicant may have retained her Chinese nationality at the time of adoption and the Tribunal finds that she had declared her Australian nationality to the adoption officials (who were not interested in her Australian nationality). The Tribunal is of the view that the officials were aware of the applicant’s Australian nationality, but chose to rely on her Chinese nationality and she was not considered as a ‘foreigner’. As the review applicant’s Australian nationality was the only reason the delegate found the adoption was not in accordance with the laws of China, and in the absence of any other concerns about the validity of the adoption, the Tribunal is satisfied, on balance, that the adoption was in accordance with the laws of China.

27. For these reasons, the Tribunal finds that the visa applicant meets cl. 102.211(2) and cl. 102.211. the Tribunal also finds that the visa applicant meets cl. 102.213.

    Conclusion

28. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

29. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 102 (Adoption) visa:

    ·cl.102.211 of Schedule 2 to the Regulations; and

    ·cl. 102.213 of Schedule 2 to the Regulations.

    Kira Raif

    
    

    Senior Member