Song (Migration)

[2023] AATA 4035

Song (Migration) [2023] AATA 4035 (1 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Destiny Zi Ying Song

REPRESENTATIVE:  Ms Amelia Huey Tan

CASE NUMBER:  2308337

HOME AFFAIRS REFERENCE(S):          BCC2021/2244716

MEMBER:Moira Brophy

DATE:1 November 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 applicant meets the following criteria for a Subclass 102 (Adoption) visa:

·cl 102.211of Schedule 2 to the Regulations.

Statement made on 01 November 2023 at 4:13pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – private, customary arrangement – adopting parents residing overseas for more than 12 months when application made – father does not meet requirement but mother does – residence not contrived to circumvent requirements – ongoing work in own business – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(7A)
Migration Regulations 1994 (Cth), Schedule 2, cl 102.211(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 1 June 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 November 2021. 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 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 which requires an applicant to be under the age of 18 and have been, or will be, adopted overseas by an Australian citizen, permanent resident or an eligible New Zealand citizen under certain types of adoption arrangements.

4. The delegate refused to grant the visa on the basis that cls 102.211(2), (3) or (4) was not met because the sponsor named had not been residing overseas for 12 months at the time of the adoption and his wife, the adoptive mother, had been residing overseas for more than 12 months at the time of application but the delegate was not satisfied that her period of overseas residence had not been contrived to circumvent the requirements of entry to Australia of children for adoption.

5. The visa applicant applied for review of the decision to the Tribunal on 13 June 2023. The Tribunal observes that although the visa application and visa applicant were offshore at the time the application was made, the visa applicant arrived in Australia on 23 May 2022. Following amendments that came into effect from 27 February 2021 that permit a Subclass 101 and 102 visa to be granted inside Australia in certain circumstances, a decision to refuse a Class AH visa is reviewable under s 338(7A), as long as the visa applicant is in the migration zone when the refusal decision was made and at the time of applying for review. Therefore, the visa applicant has standing to seek review of the decision in this case, rather than the sponsor.

6. The applicant appeared before the Tribunal on 13 September 2023 to give evidence and present arguments. The Tribunal received oral evidence from the sponsor, Mr Nicholas Kiong Song and from Ms Chin Chu Jee.

7. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the visa applicant meets cl 102.211, and if not, whether she meets the criteria for any of the other visas in the same class.

11. The visa applicant named Wong Xin Mei was born on [Date] in Malaysia. Her biological parents were recorded as Wong Mei Yun and Maklumat Tidak Diperolehi. Her Malaysian Record of Birth stated she was adopted by Jee Chin Chu and Nicholas Kiong Song and her name was recorded as Destiny Song Zi Ying. In accordance with Malaysian (Sarawak) laws, her adoptive parents have full care, custody and control over the adoptive child.

12. At the time of application Mr Nicholas Kiong Song advised he was the sponsor of the adopted child Destiny Song Zi Ying and that he was in a relationship with Ms Chin Chu Jee. Mr Nicholas Kiong Song provided evidence that he became an Australia Citizen on 26 October 1995 and that his partner acquired permanent residency on 6 March 2020 when she obtained a 309 Partner visa.

    Evidence given at hearing

13. Ms Chin Chu Jee told the Tribunal she and Mr Nicholas Kiong Song live with the applicant in a home purchased by Mr Song more than 10 years ago. Mr Song is in full time employment and Ms Jee is employed 30 hours per week. While Ms Jee is working, the applicant is in childcare or cared for by her paternal grandmother. While initially when she went to childcare the applicant suffered from separation anxiety, she is now more settled.

14. Ms Jee said after she and Mr Song married in 2015, she had been granted a 309 Partner visa but she had not moved to Sydney on a full time basis. She had continued to predominantly live in Malaysia and conduct her business. She had founded a company supplying products and services for gifted children. She had an agreement with her business partner that she would continue to work in the company for at least five years and if all was still going well at the time the partner would purchase her share of the company and take over the running. The understanding was at that time Ms Jee would move to Australia. During this period, Ms Jee said when she was in Australia with her husband she was looking at other business options for when she moved here.

15. Ms Jee said she had not moved her bank accounts to Australia. Her vehicle was still registered to her in Malaysia. For all legal documents, her address was still recorded as being in Malaysia.

16. Ms Jee said the business arrangement she entered was as a consequence of her difficulties in becoming pregnant. She had physical impediments that impacted her fertility, and these were compounded by her and her husband’s age. Their age precluded them from adopting in Australia so they determined to asses options available to them in Malaysia. While there were limited options available, they heard through the mother of Ms Jee of a single mother who was intending to put her child up for adoption. Ms Jee said it was made clear to her that it was up to her to make all the necessary arrangements. Given there was no intercountry agreement, they had to access and assess what was required.

17. Ms Jee said there was no ongoing contact with the applicant’s biological mother. Once the adoption was complete, she changed her mobile number so they were no longer able to contact her.

    FINDINGS AND CONSIDERATION

18. Subclass 102 covers both private adoption by Australians resident overseas and adoptions arranged with the involvement of adoption authorities.

19. In order to meet the requirements of cl 102.211(1), the applicant must be the subject of any one of four kinds of acceptable adoption arrangements, namely private overseas adoptions (cl 102.211(2)), an adoption arranged by a State/Territory competent authority (cl 102.211(3)), Hague Convention or bilateral adoptions (cl 102.211(4)) or third country Hague Adoption Convention (overseas adoptions (cl 102.211(5)).

20. In the present case, there is no claim of a State/Territory or other agency arranged adoption. The applicant claims to have been adopted by private, customary arrangement by her relative, the sponsor.

21. Therefore the only subparagraph of cl 102.211 relevant in this case is subparagraph (2), which requires, at the time of application:

    ·The applicant has not turned 18;

    ·the applicant must have been adopted overseas by a person who was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen;

    ·the adopting parent/s had been residing overseas for more than 12 months at the time of the application; and

    ·the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    ·the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.

22. The Tribunal is satisfied that at the time of application the applicant had not turned 18. The Tribunal is further satisfied that the applicant has been adopted overseas by persons who were an Australian citizen and the holder of a permanent visa.

23. The applicant is therefore able to satisfy cls 102.211(2)(a) and (b)(i).

24. The Tribunal then considered if the person who adopted the applicant had been residing overseas for more than 12 months at the time of application (cl 102.211(2)(b)(ii)).

25. Information contained in Departmental movement records indicate that Mr Nicholas Kiong Song, the sponsor had been outside Australia for 248 days in the 12-month period before lodgement, and that period is well short of 12 months. At hearing he confirmed the dates outside Australia. Departmental movement records for Ms Chin Chu Jee, the partner of the sponsor and the adoptive mother, confirm that she was outside Australia for more than 12 months in this period.

26. The delegate was satisfied the applicant was able to satisfy cl 102.211(2)(b)(ii) but was not satisfied the residence overseas by the adoptive parent was not contrived to circumvent the entry requirements to Australia (cl 102.211(2)(c)).

27. The Tribunal considered the evidence given at the time of hearing. The Tribunal found Ms Jee to be a credible witness and was satisfied it could rely on her evidence in making findings of fact. The evidence given as to Ms Jee’s role in the business and her continued employment with that business were corroborated by records provided to the Tribunal. An examination of Departmental movement records were demonstrative of her spending the majority of her time in Malaysia after she obtained Australian permanent residency in March 2020. Given that on her evidence it was not apparent at that time that she had an infertility issue and that she and her husband would later be adopting a child, it is not a sustainable argument that her residence overseas was to circumvent the requirements as set out.

28. Therefore, the applicant does meet cl 102.211(2)(c).

29. From the Malaysian record of Birth provided, the Tribunal is satisfied that the adoptive parents legally acquired full and permanent parental rights by the adoption and the applicant is therefore able to satisfy cl 102.211(2)(d).

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

    DECISION

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

    ·cl 102.211 of Schedule 2 to the Regulations.

    Moira Brophy
    Member