Qiao (Migration)

[2017] AATA 374

Qiao (Migration) [2017] AATA 374 (6 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Xiu Ying Qiao

VISA APPLICANT:  Miss Li Qiao

CASE NUMBER:  1609128

DIBP REFERENCE(S):  2015069116

MEMBER:Michael Cooke

DATE:6 March 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 101 (Child) visa:

·cl.101.211 of Schedule 2 to the Regulations

·cl.101.212 of Schedule 2 to the Regulations

·cl.101.213 of Schedule 2 to the Regulations

·cl.101.221 of Schedule 2 to the Regulations

Statement made on 06 March 2017 at 4:31pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 – Dependent child under 25 – Chinese Adoption Law – Taken in as baby – Fully reliant on sponsor – Difficulties with adoption process – Formal adoption granted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.211, cl 101.212, cl 101.213, cl 101.221, r 1.03, r 1.04, r 1.05A

CASES
Huynh v MIMA [2006] FCAFC 122

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 16 June 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 3 September 2015. 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 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because

5. The review applicant appeared before the Tribunal on 28 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a supporter of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant is the adopted dependent child of her sponsoring parent.

   Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. 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).

   Dependent child

10. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

11. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

    Findings and reasons relating to whether the applicant is a ‘dependent child’ of an eligible person at the time of application and/or decision

12. The Tribunal finds the applicant was over 18 at time of application.

13. The applicant was adopted informally by the sponsor as a foundling. Despite her many efforts in the 1990s to formalize her adoption, she was prevented from doing so by the Chinese authorities’ reluctance - she claims. She even considered sending the daughter to state care such as an orphanage but was disabused of doing so by the authorities who requested her to continue to care for the child. Her adoption difficulties she put down to population policy and the fact that she already had two blood children by her former husband. She tried many times in the 190s and early 2000s (before moving to Australia in 2004) to remedy the deficiency - unsuccessfully. The authorities even threatened to fine her if her daughter was authorized. She also had to pay extra for everything because her daughter was not registered on her hukou (Household Register document).

14. In 2010 she heard advice given by family members that the Chinese Government was beginning a national census. She suggested that one of the policy prescriptions of the Chinese Government was to legalize all the persons who were not already embedded in family hukous for reasons such as being foundlings or offspring who found themselves outside the ‘one child policy’ etc. She treated this as a heaven sent way of having her status-less daughter incorporated into her hukou permanently and formally recognized as a Chinese citizen. To this end she got straight on a plane to China. She advised in oral evidence that she met co-operation from the PSB/Police officials but bureaucratic slowness from higher authorities. Nevertheless, after much running around collecting and collating paperwork and visiting bureaucrats she was finally issued the cherished document one day prior to her departure back to Australia.

15. She remained dissatisfied, however, that her daughter’s incorporation in the 2010 hukou was recognised but not adequately dealt with in regard to formalising her formal adoptive status. So she continually sought to have her daughter’s status verified in law. Finally, on 24 April 2014, she succeeded in having her daughter assigned the status of adopted daughter or stepdaughter on the family hukou (see translated document below).

16. The delegate in the decision record questioned the formal adoption of the applicant under the Chinese Adoption Law. However, it is well settled that the primary source for personal identity status in China is the hukou document or Household Register (see below) which is maintained by the PRC police (PSB or Ministry of Public Security). Hukou registration is the sole legal basis of Chinese family identification (D1, f.95)

17. The (translated) explanatory memorandum on the hukou explains this very clearly (D1, f.85):

    Household Register Under Supervision Of the Ministry of Public Security of P.R.C

    The Household Register has the force of law proving the identity status of Citizens and the relationships among the family members, being the important evidence for household investigation and checking for household registration authority. When the household registration officers are investigating and checking the household, the head or the member of the household should offer the household initiatively.

    The details of the applicant’s status in the most recently available hukou document state the following:

    Name: Qiao Li

    Head or Relationship with head: Adopted daughter or Stepdaughter

    Reg 1.04 Adoption and its Impact on the Applicant

    (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.

18. The following findings are made by the Tribunal:

    ·The applicant was adopted by the sponsor before attaining the age of 18 and the sponsor assumed a parental role in relation to the adoptee throughout her life.

    ·The applicant was not immediately adopted under the Chinese adoptive law but under “other arrangements” entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    ·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.

    • 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. As the mother of already two children the applicant was disenabled from registering her daughter or alternatively pay an onerous penalty of RMB18,000. The authorities condoned the “other arrangements” entered into by the sponsor as obviously “usual practice” and did not penalise the applicant further despite the revelation of a third (adopted) child. There was no attempt to remove the child from her care. A suggestion to the authorities that they put her into an orphanage was rebuffed by the latter, she claimed in oral evidence. They encouraged her to maintain the applicant which she did throughout and at significant added expense in her single parent circumstances. The Tribunal finds this conduct by the authorities to be further evidence of the behaviour in adopting the applicant being “usual practice” in the sponsor’s city.

    ·Thus formal adoption of the kind referred to in paragraph (1)(b) was available but was not ‘reasonably practicable in the circumstances’ because the applicant was a single parent and unable to pay the hefty fine demanded by the authorities. She attracted this (purported) fine for an ostensible breach of Government population policy. This was not deliberate but caused by a profound act of human kindness – rescuing a foundling.

    ·The sponsor made various efforts to adopt her child and then successfully had her included on the 2010 edition of her hukou and subsequently acknowledged formally as her adopted daughter on her 2014 hukou.

    ·The arrangements have not been contrived to circumvent Australian migration requirements and were in place prior to the date of application.

19. Thus it can be seen from the most recent hukou that the applicant is the adopted child of her sponsoring mother (D1, ff. 51-59). This evidence satisfies the requirements of reg.1.04(1). The applicant’s hukou details are listed as a step-child as well - but she cannot meet the Australian definition of step-child (see below). She is not a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or not a person who is not the child of the parent but:  

    (i)  who is the child of the parent's former spouse or former de facto partner; and

    (ii)  who has not turned 18; and

    (iii)  in relation to whom the parent has:

    (A) a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)  guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

20. The view of the Tribunal is that the applicant was adopted by the sponsor in 1993 or as explained in the Certification document of the Civil Affairs Bureau of Xiangcheng District of Zhangzhou City of Fujian Province:

    (The sponsor) found an abandoned female baby by the road near the original Putou St of Xiangcheng District and she brought the baby home and brought her up. The baby is Named (the applicant) and the relationship between (the sponsor) and (the applicant) is a de facto adoptive relationship.

21. Thus the adoptive status of the applicant has been confirmed by two strong authorities: the Civil Affairs Bureau and the PSB.

22. Having established that the applicant can meet the requirements of reg.1.04 it is apparent that she was 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 an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen. Furthermore in 1993 “at the time of adoption” the sponsor was not a permanent resident of Australia. She did not become a holder of a permanent visa until 2004 when she was sponsored to Australia by her son on a Contributory Parent visa and it was granted as part of the consequences of the grant of that visa.. The formal legal adoption of the applicant may have been authorised by the Chinese authorities in 2014 through incorporation on the sponsor’s hukou. However, her adoption for the purposes of reg.1.04 took place in January 1994 when she took possession of the applicant as a mother.

23. Accordingly, cl.101.211(1)(a)and (c)(ii) is met at the time of application, and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

24. At the time of application, the visa applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl.101.211(1)(b).

25. The applicant’s age at time of application was 21 years of age and at time of decision she is 23 years old.   

26. Accordingly, cl.101.211(1)(b) is met at the time of application, and continues to be met at the time of decision.

27. The Tribunal also finds the applicant is sponsored by a person who has turned 18 and is an Australian citizen, and is the Australian citizen mentioned in subclause 101.211(1). The applicant thus meets cl.101.212.

    Conclusion about dependent child criteria

28. Regarding dependency, the Tribunal makes a number of observations and findings. Firstly the sponsor is a divorcee dating to the 1980s. Her other children were already grown at the time she found the applicant in 1993 and both were working. Her son had taken up residence in Australia post 1989. Her daughter later came to Australia to live permanently. Thus she maintained the applicant solely as her child and the applicant was wholly reliant on the sponsor for her basic needs until 2004. In 2004 the sponsor went to live in Australia. Nevertheless the applicant continued to rely on her financially after she left China to move to Australia through financial bank transfers. Occasionally, (she informs in oral evidence) she sent cash to the applicant through family members who were travelling to China contemporaneously. From May 2004 to September 2009 (according to the Department file) the applicant resided with the sponsor’s brother and his family and the sponsor’s mother. She then repaired to study at boarding school in September 2009 at Zhanghzou First Vocational Secondary School and she continues to study at tertiary level at Zhanghzou Institute of Science and Engineering to this day (T1, f.22).  The sponsor’s continuing bank transfers have been evidenced to the Tribunal in recent information (T1, ff.24-27). The Tribunal finds the applicant was and is wholly reliant on the sponsor at both time of application and decision for her basic needs. Furthermore, her reliance on the sponsor is greater than any other person or other source of support and was so for a substantial period immediately before time of application.

29. The Tribunal finds that the applicant has turned 18 and the applicant is not engaged to be married and does not have a spouse or de facto partner; and has never had a spouse or de facto partner; and the applicant is not engaged in full-time work; and the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The applicant, therefore, meets cl.101.213(1) of the Regulations.

30. The Tribunal also finds that the applicant had turned 18 at the time of application and the applicant continues to satisfy the criterion in clause 101.211 and continues to satisfy the criterion in clause 101.213. Therefore, the applicant meets cl.101.221(2).

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

    DECISION

32. 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

    ·cl.101.212 of Schedule 2 to the Regulations

    ·cl.101.213 of Schedule 2 to the Regulations

    ·cl.101.221 of Schedule 2 to the Regulations

    Michael Cooke
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03   Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …