Nguyen (Migration)

[2024] AATA 232

Nguyen (Migration) [2024] AATA 232 (5 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Ngoc Thao Nguyen

VISA APPLICANT:  Master Dang Khoa Nguyen

REPRESENTATIVE:  Mr Alan Dino Duri (MARN: 1684393)

CASE NUMBER:  2119768

HOME AFFAIRS REFERENCE(S):          BCC2020/2730564

MEMBER:Meena Sripathy

DATE:5 February 2024

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 101 (Child) visa:

· cl 101.211 of Schedule 2 to the Regulations; and

· cl 101.221 of Schedule 2 to the Regulations.

Statement made on 05 February 2024 at 2:31pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – application and delegate’s decision made for adoption subclass – sponsor/review applicant not Australian citizen or permanent resident at time of adoption – visa applicant’s father and review applicant siblings and continued living in extended family home after review applicant adopted visa applicant nephew – review applicant’s parental role – adoption does not preclude personal contact between child and biological parents – application completed by agent – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.04(1), Schedule 2, cls 101.211(a), (c)(iii), 101.221

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 Home Affairs on 27 October 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 applied for the visa on 26 November 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 In this case, the applicant originally made claims only in respect of Subclass 102 (Adoption).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). Relevantly to this case, they include cl 102.211 relating to the nature of the adoption.

4. The delegate refused to grant the visa on the basis that cl 102.211 was not met for the following reasons: the Adoption Order provided indicates the applicant was adopted only by the sponsor and before she became the holder of a permanent visa and the sponsor had not been residing overseas for more than 12 months and therefore the requirements of cl.102.211(2)(b) was not met; additionally the delegate was not satisfied the adoptive parents had lawfully acquired full and permanent parental rights by the adoption and therefore cl.102.211(2)(d) was not met. The delegate was not satisfied evidence was provided to indicate clause 102.211(4) or (5) were met, relating to adoption arranged by competent authorities or under the provisions of the Hague Convention. Having concluded that these criteria were not met the delegate concluded that the criteria for the grant of Child (Migrant) visa were not met.  No consideration was given to whether the applicant met the criteria for Subclass 101 (Child) or Subclass 117 (Orphan Relative) visas in that same class.

5. Subsequent to the delegate’s decision, on 22 November 2021 a new representative for the visa applicant and sponsor requested the decision be vacated on the basis of jurisdictional error for failing to consider alternate subclass criteria. A detailed submission addressing law and policy on this point was attached. On 1 December 2021 the Department responded that the delegate’s decision will stand and no further processing of the application will occur. The representative made a further request to vacate, with further detailed submissions, on 10 December 2021.  On 13 December the applicant was advised the Department’s position remained unchanged and the delegate’s decision was made and is final.

6. On 24 December 2021 the sponsor applied for review of the decision to the Tribunal.

7. On 16 January 2024 the Tribunal received written submissions and supporting documents.

8. The review applicant appeared before the Tribunal on 19 January 2024 to give evidence and present arguments. The Tribunal also took evidence by phone from Thanh Vu Nguyen, the review applicant’s brother and biological father of the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review and the representative attended the hearing.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

10. The visa applicant is a Vietnamese national, born in Vietnam in February 2006, and was 14 years old at the time of application. He was sponsored by the review applicant, who is a Vietnamese national, who came to Australia on 19 September 2018 on a Subclass 309 Partner visa.  She was granted a permanent Subclass 100 visa on 1 September 2020.

11. As indicated above, at the time of application, Adoption was selected as the type of application on Form 47CH.  On Form 40CH, Sponsorship, the visa applicant is indicated to be an adopted child, adopted before the sponsor became an Australian citizen or permanent resident. The sponsor indicates on this form (at Q18) that she does not have sole legal right to determine where the child shall live and indicates the names of the biological parents as persons who have parental responsibility for the child.

12. Relevantly to the issues arising in the review, the following documents were provided with the application:

    ·Copy and translation of a Decision on Recognition of Adoption dated 15 September 2014 indicating agreement of Mr Nguyen Thanh Vu and Ms Nguyen Thi Thnah Hau to recognise the review applicant as adoptive parent of the visa applicant. The document states: Article 2: The adopting and adopted persons shall enjoy rights, obligations of parents and children in accordance with Law on marriage and family. 

    ·Certificate of Adoption registered 15 September 2014

    ·Visa applicant’s Vietnamese passports issued 7 October 2020 and 10 June 2014

    ·Visa applicant’s birth certificate issued 6 March 2006, stating the names of his birth parents.

    ·Visa applicant’s ID card indicating his permanent residence as Vinh Hoa Phu Giao District Binh Duong

    ·Copy and translation of review applicant’s Household Register dated 3 January 2014 including the visa applicant

    ·Consent Form for Child to permanently stay in Australia signed by Nguyen Thanh Vu and Nguyen Thi Thanh Hau  dated 20 October 2020

    ·Copies and translations of ID cards, marriage certificate and Household Register of Nguyen Thanh Vu and Nguyen Thi Thanh Hau, indicating visa applicant’s transfer to review applicant’s register on 15 September 2014.

    ·Photos of the visa applicant at various stages of his life.

13. On 10 March 2021 the Department was advised of the death of the sponsor’s husband and a death certificate was provided. 

14. Before the Tribunal, on 16 January 2024, the Tribunal received the following documents:

    ·Submission from the representative

    ·Statutory Declaration by the review applicant dated 15 January 2024

    ·Evidence of money transfers by the review applicant to the visa applicant in November -December 2023, photos and screen shots of a chat

    Pre hearing submissions of the representative

15. The submissions set out the background of the matter and at the outset concedes that the visa applicant does not meet the criteria for Subclass 102 because the review applicant as adopter was not an Australian citizen or permanent resident at the time of adoption. However, it is submitted that it is a requirement that the application be assessed against all subclasses in the Class of visa applied for, being Class AH, which contains subclasses 101, 102 and 117. No claims are made in respect of subclass 117, because the visa applicant is not an ‘orphan relative’ as defined in r.1.14 of the Regulations.

16. It is submitted that the visa applicant satisfies the criteria for subclass 101, on the basis that the review applicant adopted the visa applicant by formal order on 15 September 2014, evidence of this is included in the Department file at pp 37 to 45.

17. The submission states:

    Ms Nguyen was a Vietnamese citizen and Vietnamese resident at the time she adopted Khoa.

    To avoid any doubt, the Vietnamese adoption is a process under law that severs the parental relationship between Khoa and his biological parents. I note that Article 2 of the Decision on Recognition of Adoption (at p39 of the file) states (as translated): “The adopting and adopted person shall enjoy rights, obligations of parents and children in accordance with Law on marriage and family”

    There is no country information to suggest that a legal adoption in Vietnam does not carry the same rights and responsibilities as adoptions do in Australia. For example Vietnam is party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention)1.

    Accordingly, I submit that the Vietnamese adoption is a formal adoption as set out in r.1.04(1)(b).

18. The submission addresses the issue of whether the review applicant assumed a parental role as required by regulation 1.04. On one view, it is submitted, a formal adoption of itself implies the adopter has assumed parental rights by force of law, in contrast with the definition of customary adoption which requires additional qualitative criteria.  The submission argues that the effect of the formal adoption is that the sole person who has the legal right to make decisions concerning Khoa is his adoptive mother Ms Nguyen.  It is argued that nothing in law or policy requires any type of qualitative assessment of the parental role.  Even if the visa applicant has had an ongoing association with his biological parents, there is nothing in the adoption process that severs or forbids any personal contact between the biological parents and child. The representative submits the review applicant has assumed a parental role by virtue of the adoption, as a matter of law, and also in practice, if a qualitative assessment is considered to be required.  She has cared for the visa applicant and made all decisions regarding his upbringing, since 2009, and he has been included in her household registration since 2015. The adoption predates her meeting her husband and therefore it was not contrived for visa purposes.

19. The submission goes on to address the specific concerns identified by the delegate regarding responses provided in the sponsorship form and provision of the Form 1229 and description of the sponsor as ‘foster mother’ in that document and the school report and birth certificate referring to the birth parents.

20. The submission concludes that the visa applicant is the adopted child of the review applicant and meets time of application criteria in cl.101.211(1) and, continues to meet the criteria at time of decision, noting he does not turn 18 years old until 22 February 2024.

    Tribunal hearing

21. At the hearing the Tribunal confirmed with the review applicant and her representative the concession that the visa applicant does not meet the criteria for Subclass 102, as the review applicant was not an Australian citizen or permanent resident at the time of adoption. It was also confirmed that the review applicant relies on the Adoption order obtained in Vietnam and makes no claims of customary adoption.

22. The review applicant provided the following evidence.  She lives at her current address with her daughter, who is 7 years of age. She works part time as a kitchen hand and also receives income support form Centrelink. Apart from her daughter she has no other close family members in Australia.  In Vietnam she has her parents, seven siblings and the visa applicant, her adopted son. The visa applicant lives with her parents, one of her sisters, who is unmarried, and two children of another sister.  All of her other siblings live separately with their own families, close by in the same district of Binh Duoug, Vietnam. The review applicant lived at this same address with her parents and the same sister when she was residing in Vietnam, up until she came to Australia in September 2018 upon grant of a Subclass 309 partner visa.   

23. The Tribunal asked the review applicant how she came to adopt the visa applicant. She said he is the biological son of Thanh Vu Nguyen who she calls brother no. 5. This brother was the first in the family to marry and the visa applicant was his first child, born in 2006.  At that time her brother and his wife lived in the family home with all of the siblings.  She is the eldest sibling of all of her siblings.  She was not married and was getting on in age and therefore she took a significant role in caring for this child.  Her brother Thanh Vu had a second child in 2009, and after that he and his wife decided to move to their own house.  The other siblings also moved out one by one as they married and had their own families.  When Thanh Vu moved out, the visa applicant wanted to stay in the family home with the grandparents and his aunties, including the review applicant because he received a lot of attention from them all. Thanh Vu and his wife agreed to this. They were busy with their lives and working at the time.  The review applicant took the role as the primary carer for the visa applicant, taking him to and from school, and looking after his daily needs. Later when she went to Australia, she sent money for his education and care.

24. The Tribunal asked how she came to adopt him.  She said she first discussed adopting him in 2009 with her brother, because she was unmarried at that time and given her age, she did not think she would have any children of her own.  However, the adoption did not happen until 2014.  They went to the Local Government office in their area and were given various forms to fill out.  The visa applicant’s biological parents also had to attend the office and complete forms. The process took some time before the order was made.  The Tribunal asked why they went through this formal process at this time.  She said she wanted to make sure if anything happened to her the visa applicant would be the beneficiary.  At this time, she had a property on the family land from which she operated a business. The Tribunal asked the applicant how her relationship with the visa applicant differed from her sister who also lived with him. She said the child always called her “mummy” and her sister was “aunty”. After she left for Australia, she asked her sister to help in the care of the visa applicant, but she maintained responsibility for him. 

25. The review applicant said she was the one who enrolled the visa applicant in school when he started his education and took him to and from school.  She had done this before she obtained the adoption order and so nothing changed regarding the school even after she formally adopted him, because they always dealt with her as the parent. After the adoption the visa applicant was transferred to her household registration. Apart from this, no other documents were changed after the adoption. The Tribunal asked about the visa applicant’s passports and how they were applied for. She said the first one was before the adoption and his biological mother came with her to apply for it. The second one was a renewal online and she did it.  She cannot remember if she provided the adoption order.  He has never used his passport to travel internationally to date.

26. The Tribunal asked why the school records provided to the Department for the years after the adoption continue to refer to the biological parents. She said it may be because they relied on his birth certificate which was not changed. The review applicant said his biological parents were never involved in his education, they never attended the school meetings about him, it was always her, or after she left, her sister. She described the process of changing his school in 2021 to Saigon.  She said that decision was made by her based on information one of her other brother gave her about the visa applicant’s issues at school. She was told he was mixing in a bad crowd, and for this reason, after discussion with her family, she decided to transfer his school. She paid the fees for the new school and has receipts to show this. The review applicant said the new school records still show the biological parents because of the birth certificate, but she is the decision maker and responsible person for his education. The review applicant said his biological parents have never and still do not get involved in the day-to-day decisions about his life. She said he sees his biological parents and his brother as they live close by.

27. The Tribunal asked the applicant why she indicated on the sponsorship form that the biological parents have rights to decide where he can live. She said the form was completed by her then agent and she does not know why this was indicated. They were given a form to sign, and they signed it.  At the time she was dealing with the circumstances of the COVID pandemic and her husband was also very unwell.

28. The Tribunal noted that the Department’s decision record relating to her previous subclass 300 Prospective marriage visa application indicated the visa applicant was included in the application, and a copy of the adoption order was provided.  However, the information on the document was inconsistent with other information she gave and the document was found to be not genuine. The review applicant said she relied on her then agent at that time and believed that she explained it. Later her husband appealed the decision and then she was granted a partner visa. She said in 2016 she applied for a visitor visa to visit her husband because he was unwell.  She cannot remember if the visa applicant was mentioned in that application, but she did not apply for him to come with her because she was coming to care for her husband.

29. The Tribunal asked the review applicant about her contact with the visa applicant now. She said she is in daily contact with him. She knows how he is doing at school; he is not doing that well because she is not there with him. He is better at art and music and gets tutoring in those subjects. Her daughter refers to him as older brother.  She says hello when the applicant is speaking with him on the phone. The applicant has travelled to Vietnam three times since COVID to se the visa applicant.

    Evidence from Thanh Vu Nguyen

30. The witness lives with his wife and younger son in Vinh Tien Vien Hoa. He confirmed he has another son, the visa applicant who lives separately with his aunties and grandparents and has lived there since birth. The witness confirmed that he and his wife lived in the family home until 2009, when they moved away with their younger son. The visa applicant’s aunty, the review applicant, later adopted him. When asked why he was adopted, the witness said his sister was of a mature age and still single and she wanted to adopt his son, and they agreed. He was not in a financially good position and she was older and had no children so it was in the best for the families.

31. The Tribunal asked what involvement he has in the visa applicant’s life. He said he is not involved. His sisters have taken care of his education since the beginning. He has never lived with his biological parents and sibling. They see him, as they see other family members. The boys see each other at school. The witness was aware the visa applicant went to Saigon to study in 2021 but then came back. The decision to transfer him was made by his sister, the review applicant and she made the arrangements and paid for it.  He did not complete any of the registration forms, his third sister in Vietnam did this. The witness confirmed that the visa applicant was transferred from his household registration to the grandparents when the adoption process was completed.

1. The witness told the Tribunal he does not have any obligations for the visa applicant, the review applicant, his sister, is fully responsible for his financial support and education and all other needs because she adopted him.

   Representative oral submissions

2. The representative submitted that the witness evidence has been consistent with the review applicant’s written and oral testimony. Regarding the issue of the sponsorship form and form 1229, it is submitted that as she stated, her previous agent completed the forms, and she did not understand the significance of the responses. The representative submits given the circumstances and the review applicant’s limited English skills; the Tribunal should place little weight on the responses in these documents given the evidence regarding the adoption that had taken place. The parties signed what they were asked to sign.  It is clear from the applicant and witness testimony that the review applicant made the decision about the visa applicant’s schooling in 2021, though her sister in Vietnam took care of the practical arrangements including registration. This is consistent with, and demonstrative of, her parental role.  It is submitted the adoption was obtained to formalise arrangements already in place in the family. It was totally separate from and predated the review applicant’s later migration to Australia.  She has now had to endure a prolonged separation from her son.

3. The Tribunal allowed a period of two weeks to provide any further documents that can be obtained relating to the 2021 school transfer. 

4. On 1 February 2024 the Tribunal received the following further documents:

   ·Supplementary submission from the applicant’s representative.

   ·Statutory Declaration dated 29 January 2024 from review applicant.

   ·Copy and translation of school transfer referral form dated 28 January 2021 relating to visa applicant’s attendance at Hai Ba Trung, in Ho Chi Minh city as a boarding student for one semester in the 2020/2021 academic year.

   ·Copy and translation of a receipt dated 6 January 2021 showing the review applicant paid the school fees.

   ·Photos of the visa applicant undertaking calligraphy lessons.

5. The representative’s submissions rely on previous submissions and arguments to argue the evidence supports that the review applicant assumed a parental role in relation to the visa applicant.  The representative reiterates his previous submissions that the ordinary meaning of “parental role” for the purposes of r.1.04(1) is one whereby a person is responsible for making decisions concerning the well-being and development of the child.  The representative submits that the evidence that the review applicant made the decision to send the visa applicant to boarding school in 2021, paid the fees, and made the subsequent decision for him to return to Binh Duong, supports that she has been responsible and exercising decisions concerning Khoa’s upbringing and welfare and accordingly has a parental role both in law and in practice, and the visa applicant therefore meets cl. 101.211(1)(a).

   FINDINGS AND CONSIDERATION

6. The Tribunal observes that the applicant indicated in the application that she was applying for the visa on the basis of adoption. On that basis the application was assessed by the Department under the Subclass 102 Adoption criteria. The delegate was not satisfied the visa applicant was adopted by the sponsor when she was the holder of a permanent visa or had been residing overseas for more than 12 months and therefore the requirements of cl.102.211(2)(b) was not met.  The delegate did not further consider whether the applicant met the criteria of the other subclasses in Class AH.

7. As indicated above (at paragraph 5), despite representations from the sponsor’s new representative regarding the failure of the delegate to assess the application against the alternative subclasses in Class AH, the Department declined to vacate the decision on the ground of jurisdictional error. No further explanation of the Department’s position in this regard is indicated in the file documents provided to the Tribunal. 

8. The sponsor subsequently applied for review of the decision and the Tribunal, having jurisdiction to review the decision, has conducted a merits review of the decision to refuse the visa applicant a Class AH visa. Pursuant to s349, the Tribunal stands in the shoes of the original decision maker, and can exercise all the powers and discretions conferred by the Act on that person.

9. The Tribunal is satisfied the visa applicant, having applied for the Class AH visa, made a valid application as required by Item 1108 of Schedule 1 of the Regulations. This class contains three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). The Tribunal finds that the visa applicant meets the Schedule 1 requirements relating to the form, fee and place of application for all three subclasses in this case.  Therefore, the applicant is entitled to be assessed against the criteria for all three subclasses in relation to his application for a Class AH visa. The Tribunal observes that this is consistent with the approach to visa applications set out in Department policy.[1] 

   [1] [P-Reg-Other-GGA] GenGuideA - All visas - Visa application procedures (immi.gov.au): Section 45 of the Act requires a person who wants a visa to apply for a visa of a particular class.

10. The Tribunal makes the following findings on the evidence before it.  The sponsor, review applicant, was granted a Subclass 309 visa and arrived in Australia on 19 September 2019.  She was granted an Australian permanent visa in September 2020.

11. The application was made on the basis that the visa applicant was adopted by the sponsor by an adoption order dated 15 September 2014. It is conceded by the review applicant and not contested in this review, that at the time of the adoption the sponsor was not an Australian citizen, or permanent resident.

12. On the above findings and, as conceded by the review applicant, the Tribunal is not satisfied the visa applicant was adopted overseas by a person who was an Australian citizen or permanent visa holder, or was residing overseas for 12 months at the time of application and therefore the visa applicant does not meet cl.102.211.

13. Having not met the criteria for a Subclass 102 Adoption visa, the Tribunal has considered whether the visa applicant meets the criteria for Subclass 101 Child visa. 

    Subclass 101 (Child)

    Was the visa applicant an adopted child of the sponsor prior to her becoming an Australian permanent resident?

14. Clause 101.211(1)(c) provides the applicant is either the child or step child of an Australian citizen, permanent resident or eligible New Zealand citizen or was adopted overseas by a person who at the time of the adoption was not an Australian citizen, permanent resident or eligible New Zealand citizen. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

15. Section 5CA of the Migration Act defines ‘child’ as including someone who is ‘an adopted child’ of a person within the meaning of this Act.

16. The Migration Regulations defines adoption in r.1.04 as an arrangement whereby a person has assumed a parental role in relation to another person before the adoptee turns 18. These arrangements can be under formal adoption arrangements recognised under Australian State or Territory law; formal adoption under the laws of another country; or other arrangements entered into outside Australia that are taken to be in the nature of adoption: r.1.04(1).

17. Sub regulation 2 of r.1.04 sets out the requirements that such ‘other arrangements’ must satisfy to be taken to be an adoption:  they must be made in accordance with usual practice or a recognised custom in the culture of the adoptee and adopter; the child-parent relationship between the adoptee and adopter must be significantly closer than any such relationship between the adoptee and any other person; formal adoption must not be available or reasonably practicable in the circumstances; and the arrangements must not be contrived to circumvent Australian migration requirements: r.1.04(2). 

18. In the present case, the visa applicant claims to be the adopted child of the sponsor by formal adoption order made under Vietnamese adoption law. In support of this claim, a copy and translation of a Decision on Recognition of Adoption dated 15 September 2014 indicating the review applicant as the adoptive mother of the visa applicant was provided to the Department and is before the Tribunal, together with a Certificate of Adoption registered on the same date. Evidence was also provided that the visa applicant was added to the review applicant’s Household Register as her adopted child. A copy and translation of the Household Register was provided to the Department.  The Tribunal took oral evidence from the review applicant and from the biological father of the visa applicant, and has considered  the provisions of the relevant Vietnamese Law on Adoption, specifically relating to conditions on adopting persons (article 14) and procedures involved (Articles 17-22). [2] 

    [2] CSDLVBQPPL Bộ Tư pháp - Adoption (moj.gov.vn)

19. On the evidence before it, the Tribunal accepts that the visa applicant is the nephew of the review applicant and was living with him in an extended family situation from the time of his birth. It accepts the account provided by the review applicant, which was corroborated by the evidence of the witness, who is the visa applicant’s biological father and brother of the review applicant, about the circumstances by which she came to adopt the visa applicant.  It also accepts their evidence about the process undertaken to formalise the adoption arrangements, which was completed in September 2014 with the registration of the adoption.  Their evidence is broadly consistent with the procedures described in the adoption law considered by the Tribunal.  

20. The Tribunal has noted that concerns were held by the Department in 2016 concerning the Adoption order document, in the context of a previous application (Prospective Marriage (Temporary) Class TO 300 visa).  The decision record for that application referred to a discrepancy in the date on the Adoption order document provided in that application (which indicated a date in 2006), leading to that application being refused on the basis of failure to meet public interest criterion 4020. Having considered this information and history, and the evidence before it in this application the Tribunal is satisfied that the Adoption order before it is genuine. It also notes the passage of time since the refusal of the earlier application on the basis of PIC 4020. 

21. Therefore, on the evidence before it, the Tribunal is satisfied that the visa applicant was adopted by the review applicant, by a formal order under Vietnamese law, registered on 15 September 2014.  Having regard to Article 24 of the Vietnamese Law on Adoption relating to the consequences of adoption[3], the Tribunal accepts the review applicant assumed a parental role in relation to the visa applicant from that date. The evidence before the Tribunal is consistent with the review applicant, in practice, having assumed this role.  For example, the visa applicant formally transferred to her Household Register after the adoption; since coming to Australia the review applicant continued to send him financial support; she visited Vietnam three times to see him; and she has maintained regular contact with him.  The evidence that the visa applicant’s recent transfer from, and subsequent return to, his school was primarily decided by and paid for by the review applicant, further supports her parental role in respect of him.  The evidence from the visa applicant’s biological father, Thanh Vu Nguyen who confirmed that the visa applicant did not live with his family since 2009, and he has not been involved in a parental role with him since the adoption in 2014 is consistent with and corroborative of this position. 

    [3]  ibid

22. The Tribunal is satisfied that the review applicant is and has been, the primary person making decisions relevant to his well being and care in addition to financially supporting him. 

23. The Tribunal accepts that consistent with the joint family setting in which he lives, and has always lived, other close family members are also involved in his care. Notwithstanding this,  the formal adoption order confers upon the review applicant, as his adoptive parent, parental rights and obligations as a matter of law, and therefore a parental role. In this regard, the Tribunal agrees with the representative that no further ‘qualitative assessment’ is required, in contrast with the requirement under r.1.04(2)(b) applicable to adoptions under ‘other arrangements’ (which requires assessment of whether the child -parent relationship between the adoptee and adopter is significantly closer to any such relationship with any other person or persons).

24. Therefore, for the reasons given above, the Tribunal is satisfied the review applicant assumed a parental role in relation to the visa applicant when she adopted him under a formal order made in accordance with Vietnamese adoption laws on 15 September 2014. 

25. It is satisfied that he was adopted overseas by the review applicant when she was not an Australian permanent resident, but she later (on 1 September 2020) became one.

26. The visa applicant therefore meets cl.101.211(c)(ii). 

27. The visa applicant, born in 2006, was 14 years of age at time of application and therefore is a dependent child of an Australian permanent resident and therefore meets cl.101.211(a) and (b).   Accordingly, cl 101.211 is met at the time of application, and continues to be met at the time of decision: cl.101.221.

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 101 (Child) visa:

    ·cl 101.211 of Schedule 2 to the Regulations; and

    ·cl 101.221 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member

    
    
    

‘Class’ in this sense does not refer to a visa class, but should be understood to mean visa of a particular “type”. This is because a visa class could comprise more than one visa subclass, (and streams within a subclass) with each visa subclass (or stream) having different validity requirements prescribed in Regulations Schedule 1….. A person can be said to have made a valid application for an (entire) visa class only if all the visa subclasses/streams within the visa class have the same Schedule 1 validity requirements.