Ly (Migration)

[2017] AATA 1297

Ly (Migration) [2017] AATA 1297 (27 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bun Thoeun Ly

VISA APPLICANT:  Ms Rusing Ly

CASE NUMBER:  1613792

DIBP REFERENCE(S):  2016075088

MEMBER:Kira Raif

DATE:27 July 2017

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. 102.212 of Schedule 2 to the Regulations.

Statement made on 27 July 2017 at 2:55pm

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – Adoptive parent’s residence overseas for 12 months – Brief trips to Australia – Maintained  residence overseas – Lawfully acquired full and permanent parental rights

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 102.211, cl 102.212

CASES

Nguyet Huong Phung v MIEA [1997] 373 FCA

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 15 July 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Cambodia, born in November 2006. She applied for the visa on 22 June 2016. The delegate refused to grant the visa on the basis that cl. 102.211 was not met because the delegate was not satisfied that the requirements relevant to overseas adoption were met. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 27 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. 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.

   Is the applicant an adopted child?

6. The applicant was born in November 2006 and was under the age of 18 at the time the application was made. She claims to have been adopted by the sponsor in August 2012 and has provided with her application a Ruling Order issued by Phnom Penh Court of First Instance relating to the adoption.

7. There is no evidence that a competent authority in Australia has approved the prospective adoptive parent or allocated the applicant for prospective adoption. The Tribunal is not satisfied that the requirements of cl. 102.211(3) and (4) are met. There is no evidence that the applicant has been adopted in accordance with the Adoption Convention and the Tribunal is not satisfied she meets cl. 102.211(5).

8. The applicant seeks to meet cl. 102.211(2). The visa applicant was born in November 2006 and is under the age of 18. She meets cl. 102.211(2)(a). The review applicant provided to the Tribunal a copy of the primary decision. It indicates the sponsor acquired the Australian citizenship in February 1986. As the adoption took place in 2012, the Tribunal is satisfied that at the time of adoption, the sponsor was an Australian citizen. The visa applicant meets cl. 102.211(2)(b)(i)

9. Clause 102.211(2)(b)(ii) requires the applicant to have been adopted overseas by a person who had been residing overseas for more than 12 months at the time of the application. The delegate concluded that at the time the application was made in June 2016, the adoptive parents have not been residing outside of Australia for more than 12 months. The delegate noted that from June 2015, the sponsor spent 7 months outside of Australia.

10. The operation of this provision was considered by the Federal Court in Nguyet Huong Phung v MIEA [1997] 373 FCA (13 May 1997), when the Federal Court interpreted regulation 46(a)(ii)(A), which applied at that time and which is in identical terms to subclause 102.211(2)(b)(ii), as follows:

    It was submitted on behalf of the applicant that this requirement is satisfied where the

    
    

    “adoptive parent” has resided overseas for more than twelve 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 twelve 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 twelve months overseas residence.

11. The sponsor’s movement records show that in the months before the application was made, the sponsor was outside of Australia for one year between February 2015 and February 2016, he travelled to Australia for less than two weeks between 11 and 23 February 2016 and he was outside of Australia between February 2016 and June 2016. That is, at the time the application was made in June 2016, the sponsor had been residing overseas for a period of approximately 16 months with two brief periods in Australia for ten days in February 2015 and 12 days in February 2016. The review applicant told the Tribunal that he moved to Cambodia in 1993 to get a good job. He had been working with the Cambodian government and did not intend to move to Australia. His movement records confirm that he has been living predominantly in Cambodia and that his visits to Australia had been brief. In the Tribunal’s view, the fact that the sponsor spent less than a month in Australia in the period of 16 months before the application was made does not detract from the fact that residence has been established outside of Australia. That is, a brief trip to Australia does not necessarily affect the 12 months residence requirement and it is possible to maintain residence overseas while undertaking short trips to Australia. Having regard to the sponsor’s movement records, the Tribunal is satisfied that the sponsor has been residing overseas for more than 12 months at the time of the application. The Tribunal is satisfied the visa applicant meets cl. 102.211(2)(b)(ii) and cl. 102.211(2)(b).

12. There is nothing to suggest that the residence overseas by the sponsor was contrived to circumvent the requirements for entry to Australia of children for adoption. As noted above, the review applicant’s evidence to the Tribunal is that he has been residing in Cambodia since 1993 and continues to do so. He holds a senior role with the Cambodian government. He has spent very little time in Australia since being granted the Australian citizenship. The Tribunal is satisfied that the residence overseas was not contrived to circumvent the requirements for entry to Australia of children for adoption. The Tribunal is satisfied the visa applicant meets cl. 102.212(2)(c).

13. The delegate found that the adoption of the applicant did not provide full parental rights to the adoptive parents. The review applicant provided additional evidence to the Tribunal. This includes a legal opinion from Mr Kerya Ing, an attorney at Phnom Penh, who confirms that the adoption order gives full parental rights and obligations to the adoptive parents. The Tribunal sought further information from the overseas post and on 18 May 2017 received advice that the Cambodian adoption establishes the parent – child relationship but does not equate to the definition of full and permanent adoption in Australia. The advice indicates that Cambodian courts have not considered the adoption against the relevant Cambodian Civil Code articles which severs the ties of the child against the biological parents, making the adoption full and permanent. The advice indicates that adoption allows for the biological parents of the child to maintain their relationship and if necessary, revoke the adoption and re-establish the relationship of the biological parent and child. The advice suggests that for the purpose of cl. 102.211(2)(d), the sponsor has not acquired full and permanent rights through adoption. The Tribunal has considered the review applicant’s comments on the above information.

14. The Tribunal has considered the nature of the adoption and the requirements for a full adoption under the Cambodia law. According to a states parties report by Cambodia set out in an April 2014 report published by the UN Committee on the Rights of the Child, Cambodia’s ‘Civil Code 2007 provides for rules governing simple and full adoption’. It is stated in the report:

    Full adoption refers to an adoption that creates a permanent parent-child relationship between the adoptive parent(s) and the adopted child and terminates the respective rights and obligations between the child and his/her biological parents or guardian for minor. As for simple adoption, the relationship between the adoptee and the biological parents shall continue, and the adoptee and the biological parents shall have the right to inherit from each other. The adoptee and the natural parents shall have the right to claim support from the other and the obligation to support the other. [1]

    [1] ‘Consideration of reports submitted by States parties under article 12, paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography: Reports of States parties due in 2004: Cambodia’, UN Committee on the Rights of the Child, CRC/C/OPSC/KHM/1, 24 April 2014, CISA447F084798, p.27

15. A December 2013 newsletter by Cambodian law firm, BNG Legal, also indicates that Cambodia’s civil code, ‘governs two types of national adoptions, which are termed full adoption and simple adoption’. The newsletter includes a table comparing the requirements and procedures for full and simple adoptions, and states that ‘[b]etween the two options, only the full national adoption terminates the legal relationship between the child and his/her natural parents’.[2]

    [2] ‘BNG Legal Newsletter’, BNG Legal, December 2013, CIS36DE0BB2759, pp.5-6

16. Cambodia’s new civil code took effect on 21 December 2011. In relation to child adoption, full adoption is covered in Section II(1) of Chapter Four ‘Parents and Children’ of Book Seven ‘Relatives’ in the civil code (Articles 1007 – 1019), and simple adoption is under Section II(V) of Chapter Four (Articles 1020 – 1033).[3] In relation to full adoption, Article 1007 of the civil code, which covers the formalities of the establishment of full adoption, states that:

    If the conditions provided in Article 1008 (Joint adoption with spouse) through 1012 (Criteria for determination of establishment of full adoption) are fulfilled, a court may on petition by the person(s) who will become the adopter(s) establish a full adoption, whereby the relationship with the blood relatives on the natural parents’ side terminates.[4]

    [3] ‘The Civil Code of Cambodia’, Government of Cambodia, adopted 8 December 2007, effective 21 December 2011, CIS1ACBC921044

    [4] ‘The Civil Code of Cambodia’, Government of Cambodia, adopted 8 December 2007, effective 21 December 2011, CIS1ACBC921044

17. Relevantly, Article 1015 of the civil code, which covers the effect of a full adoption, is as follows:

    (1) By virtue of the establishment of a full adoption, the adoptee shall acquire the same status as that of a natural child of the adopter(s), and shall have the same rights and obligations as a natural child in relation to the adopter(s).

    (2) The adoptee may use the surname of the adopter(s) or the child’s own surname from before the adoption.

    (3) An adoptee shall be subject to the parental power of the adopter(s), provided that where one spouse is becoming the adopter of a natural child of the other spouse, the adoptee shall be subject to the joint parental power of the natural parent and the adopter. [5]

    [5] ‘The Civil Code of Cambodia’, Government of Cambodia, adopted 8 December 2007, effective 21 December 2011, CIS1ACBC921044

18. The relevant Articles of Cambodia’s civil code setting out the conditions to be fulfilled for a full adoption are set out below, including under Article 1007, ‘[i]f the conditions provided in Article 1008 (Joint adoption with spouse) through 1012 (Criteria for determination of establishment of full adoption) are fulfilled, a court may on petition by the person(s) who will become the adopter(s) establish a full adoption, whereby the relationship with the blood relatives on the natural parents’ side terminates’ [emphasis added].

19. The review applicant’s evidence to the Tribunal is that he took the child from an orphanage when she was only a few months old. He is not aware of the parents’ identity or whether they are alive. The review applicant said they never had any contact with the child’s biological parents. 

20. There are a number of documents before the Tribunal that indicate that the present adoption is a full adoption and not a ‘simple’ adoption. There is before the Tribunal a copy of the ruling order of a judge in the Phnom Penh Court of First Instance acknowledging a full adoption of the child. There is also a birth certificate dated 22 October 2012, which has the names of the child and the adopting parents named in the court order. Under Article 1018 of the civil code, a new birth certificate is prepared for an adoptee upon the establishment of a full adoption. A simple adoption, on the other hand, only requires, under Article 1033 of the civil code, for the establishment of a simple adoption to be noted on the margin of an adoptee’s original birth certificate. Having regard to these documents, the Tribunal has formed the view that the present adoption is a full adoption and not a ‘simple’ adoption.

21. The Tribunal acknowledges the delegate’s concerns that the full adoption does not provide full parental rights because the adoption may be dissolved and parental rights with biological parents re-established. However, the information cited above indicates that the full adoption severs the child’s relationship with the biological parents. There is no suggestion that the review applicant has, or plans to, take any steps to dissolve the adoption or abandon his parental responsibilities and at the relevant time when the adoption took place, at the time of this application and decision, the adoption had effectively given the review applicant the full parental rights with respect to the child. The Tribunal also acknowledges the submission from the review applicant’s representative that the mere fact that there is a possibility of the adoption being rescinded is not sufficient to state that the adoption does not give the full parental rights, noting that the same possibility exists under the relevant Australian adoption laws which are nevertheless recognised to give full parental rights to the adoptive parents. The Tribunal is persuaded by the helpful submission from the review applicant’s representative of 15 June 2017. The Tribunal is satisfied, having regard to the information cited above and the effect of Article 2007, that the full adoption has terminated the child’s relationship with biological parents. The Tribunal is satisfied, then, that the adoptive parent, the review applicant, has lawfully acquired full and permanent parental rights by the adoption. The Tribunal finds that the visa applicant meets cl. 102.212(2)(d).

22. The Tribunal finds that the visa applicant meets cl. 102.212(2) and cl. 102.212.

    Conclusion

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

    DECISION

24. 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. 102.212 of Schedule 2 to the Regulations.

    Kira Raif

    
    

    Senior Member