Tran (Migration)

[2018] AATA 2729

Tran (Migration) [2018] AATA 2729 (22 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Kim Cuc Tran

VISA APPLICANT:  Master Truyen Khoa Nguyen

CASE NUMBER:  1619162

HOME AFFAIRS REFERENCE(S):           OSF2015/071577

MEMBER:K. Chapman

DATE:22 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 22 June 2018 at 11:01am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Whether the sponsor has assumed a parental role in relation to the visa applicant – Witness credibility – Significant inconsistencies in evidence – Where adoptive child was not mentioned in previous visa applications – Adoption contrived in order to obtain a migration outcome – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65, 359AA, 363(3)
Migration Regulations 1994 (Cth), rr 1.03, 1.04, 1.14A, Schedule 2, cl 101.211(1)

CASES
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

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 and Border Protection on 28 October 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, Master Truyen Khoa Nguyen, applied for the visa on 12 June 2015. He was 11 years old at the time of the visa application and he is now aged 14 years. The visa application was sponsored by Ms Thi Kim Cuc Tran, who is the biological aunt of the child’s mother and purports to be his adoptive mother. She is the review applicant in this matter.  

3. 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).

4. The delegate refused to grant the visa on the basis that cl.101.211(1) was not met because the review applicant was assessed not to have ‘assumed a parental role in relation to’ the visa applicant in accordance with r.1.04(1). Therefore, the visa applicant was considered not to be the adoptive child of the review applicant pursuant to r.1.14A or her child according to s.5CA of the Act. Accordingly, the delegate determined that the visa applicant was not the dependent child of the review applicant at the time of the visa application as defined in r.1.03. On 15 November 2016, the review applicant applied to the Tribunal for review of the visa refusal decision providing a copy of that decision with her application.

5. For reasons which will become apparent, the Tribunal issued a Summons dated 28 February 2018 (returnable by 14 March 2018) addressed to ‘The Secretary, Department of Immigration and Border Protection’ pursuant to the provisions of s.363(3) of the Act. That Summons sought the following information pertaining to the review applicant’s immigration records:

   ‘The Departmental file concerning Ms Thi Kim Cuc Tran’s…Subclass 309/100 visa application (likely described as file OSF2011/035626).’

   The above file was received by the Tribunal after the appointed return date. Relevant information from that file was raised with the review applicant during the hearing pursuant to the procedure in s.359AA of the Act.

6. The review applicant appeared before the Tribunal on 18 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Kim ‘Dung’ Tran, the sister of the review applicant and maternal grandmother of the visa applicant. The review applicant confirmed there was no other person giving oral evidence. The review applicant was represented in relation to the review by her registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Both the review applicant and the witness confirmed that they understood the interpreter.  

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant was adopted by the review applicant at the time of application according to the requirements of r.1.04(1). In particular, the Tribunal must determine whether the review applicant assumed a parental role in relation to the visa applicant under formal adoption arrangements made in accordance with the law of Vietnam, being arrangements under which the persons who were recognised by the law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised: r.1.04(1)(b). If the visa applicant satisfies the requirements of being an adoptive child (and a dependent child) at the time of application, the Tribunal must also consider whether he continues to meet these requirements at the time of this decision.

   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). The Tribunal notes that the visa applicant has not yet attained the age of 18 years.

   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. ‘Child’ is defined in s.5CA of the Act and includes an ‘adopted child’. R.1.14A(2) refers to ‘formal adoption arrangements’ as defined in r.1.04(1). As is relevant to the present matter, the adoptee (the visa applicant) is taken to have been adopted by the adopter (the review applicant) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by the law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised: r.1.04(1)(b). The Tribunal must therefore be satisfied both that the adopter had assumed a parental role, and that this occurred in the context of formal arrangements meeting the terms of r.1.04(1)(b).

11. As reflected in the visa refusal decision, the Departmental delegate accepted that the visa applicant was legally adopted by the review applicant on 6 August 2009, referring to a ‘Decision of Acknowledgement of Bringing up an Adopted Child’ document. Following review of the documentary evidence, the Tribunal also accepts that these formal adoption arrangements were made. However, as is relevant to the present matter, r.1.04(1) provides that, “…the adopter assumed a parental role in relation to the adoptee under: … (b) formal adoption arrangements made in accordance with the law of another country…” Thus the provision requires both that the adopter ‘assumed a parental role’ and this was in the context of formal adoption arrangements being made. To read the provision otherwise would mean the words ‘assumed a parental role’ have no work to perform. Did then the review applicant ‘assume a parental role’ in relation to the visa applicant under those formal adoption arrangements?

12. The review applicant gave oral evidence to the Tribunal that may be summarised as follows. She went to the local authorities in Vietnam and adopted the visa applicant in 2009. She was living at her family home in Ho Chi Minh City at that time. The Tribunal confirmed with the review applicant on several occasions that at that time there were 5 persons living in the residence. They were, her sister (‘Dung’, the witness), one brother, her sister in law, the visa applicant and herself. The review applicant was quite sure that only these 5 persons resided in the family residence as at August 2009. The visa applicant was around 5 years of age when he was formally adopted by the review applicant.

13. The review applicant told the Tribunal that the visa applicant’s biological mother and father (Thuy Vy Nguyen and Vinh Thanh Nguyen) lived with them in the family residence until the child was aged 12 months. At that time both the biological mother and father went to live in another residence quite far away in Ho Chi Minh City. The review applicant confirmed these details to the Tribunal. She confirmed that after the age of 12 months the biological parents of the visa applicant no longer lived with him, rather just visiting from time to time. The visa applicant’s biological parents subsequently had two girls. According to the review applicant they never lived with the visa applicant as they resided with their biological parents elsewhere. The review applicant confirmed to the Tribunal that the visa applicant lived with her away from his sisters and biological parents. She confirmed the visa applicant never lived with his siblings.

14. The review applicant informed the Tribunal that the visa applicant still lives in her family residence with ‘Dung’, her brother and sister in law. It is the same composition of the residence since 2009 but for the review applicant now living in Australia. The review applicant initially informed the Tribunal that the visa applicant’s biological parents still reside with their two daughters away from the visa applicant, then she changed tack with her evidence to indicate the biological parents are now divorced. The review applicant accounted for this discrepancy by clarifying that the biological parents lived together away from the visa applicant from the time he was 12 months old until around 2 years ago when they divorced. The review applicant confirmed again to the Tribunal that the visa applicant never lived with his parents after the age of 12 months, never lived with his siblings and he has only ever lived with the review applicant, her sister Dung, her brother and her sister in law.

15. The review applicant contended that she assumed a parental role in relation to the visa applicant when he was 5 years old in 2009 at the time she formally adopted him. She submitted that she fed and clothed the visa applicant and took him to school. She denied that the biological parents of the visa applicant performed any parental role after the adoption. The review applicant formed a relationship with Mr Thanh Long Ho in 2008. They went to Thailand together that year. The review applicant and Mr Ho commenced co-habitation in Vietnam during 2009, prior to the adoption of the visa applicant. The review applicant then advised that she was living with Mr Ho at the time she adopted the visa applicant. The Tribunal raised with the review applicant that this information is inconsistent with her earlier account of the occupants of her residence at the time of the adoption, inviting her comment. She replied that Mr Ho was only staying there temporarily for a few days at a time. When the Tribunal raised with her that this inconsistent evidence might cause it to doubt her credibility, she replied that she had given truthful evidence adding that she might not have understood the question properly. The Tribunal raised with her that its questions were put carefully to her and that it might have difficulty accepting she didn’t understand them. She replied Mr Ho only stayed for a few days at a time then visited his own family during that period. 

16. The review applicant informed the Tribunal that she first lived with Mr Ho in 2009 and thereafter he would visit her every year for a few days at a time. They became engaged in 2009 and married in Vietnam on 15 August 2010. Mr Ho would stay with the review applicant in her residence for a few days at a time during his visits to Vietnam from Australia and also spent time with his own family. The review applicant confirmed to the Tribunal that Mr Ho only ever stayed in her residence for a few days at a time prior to their wedding on 15 August 2010. Following their marriage, Mr Ho would spend 1 to 2 weeks in the same residence with her when he visited Vietnam. She advised she was sponsored to Australia by way of an offshore Partner visa and commenced living in this country in March 2012. The review applicant asked her sister ‘Dung’ to look after the visa applicant from this time. She confirmed that Dung feeds the visa applicant and takes him to school since her departure for Australia. The review applicant sends money back to the visa applicant in Vietnam. She visits him for 2 to 3 months per annum. The review applicant indicated that she only requires ‘Dung’s’ assistance whilst she is in Australia.    

17. The review applicant agreed with the information in the delegate’s visa refusal decision indicating she was granted a permanent Subclass 100 Partner visa on 11 November 2013. When asked by the Tribunal if she declared that she was the adoptive parent of the visa applicant in her own Partner visa application or during the processing of her permanent Partner visa, the review applicant advised that Mr Ho filled out the application and didn’t declare the visa applicant (Master Nguyen) because she had not yet told him of the adoption. The review applicant advised that as her relationship was progressing well with Mr Ho she did not inform him of the adoption of the visa applicant for fear that it would strain the new relationship. When asked by the Tribunal if her prior evidence of having lived with Mr Ho in Vietnam was accurate yet she hadn’t advised him of the adoption, the review applicant stated that he didn’t know at that time. The Tribunal raised with the review applicant that it might have difficulty accepting that she lived in the same residence as Mr Ho in Vietnam for periods of time and that she hadn’t advised him of the adoption, inviting her comment. She replied that she had looked after the visa applicant since he was born and Mr Ho was fully aware of his presence in the house.

18. The Tribunal raised with the review applicant that given she hadn’t mentioned the adoption to Mr Ho at any time during the processing of her Partner visa applications, this might suggest she had not adopted him, inviting her comment. The review applicant replied that when she first arrived in Australia she was unsure of her future and she wanted to understand the lifestyle in this country before including the visa applicant. The Tribunal raised with the applicant that given Mr Ho did not know of the adoption until after she was living in Australia, that might suggest she had not adopted a parental role in relation to the visa applicant, inviting her comment. She replied that she didn’t mention the visa applicant to Mr Ho because she wanted to keep the relationship good. She confirmed that she understood the Tribunal’s question. The Tribunal raised with the review applicant that given Mr Ho didn’t know about the adoption that might suggest a lack of commitment in her relationship with him, inviting her comment. She replied that she didn’t mention the adoption earlier because she was unsure if Mr Ho would accept the adopted son.

19. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised the following information with the review applicant. The Department of Immigration file OSF2011/035626 regarding her Partner visa application was obtained under Summons dated 28 February 2018 (a copy of which was provided to her). The Tribunal advised that folios 75-76 of that file contain a translated statement from her dated 10 May 2011 in relation to her Partner visa application with Mr Thanh Long Ho and that she did not refer to Master Truyen Khoa Nguyen in that statement or in her Partner visa application generally. Further, she indicated that she lived as husband and wife in Vietnam with Mr Ho at her home from 4 July 2008 to 31 December 2008, from 14 May 2009 until 1 October 2009 (including having an engagement ceremony on 10 June 2009), from 15 October 2009 to 15 May 2010, and for various periods throughout 2010 and 2011.

20. Additionally, an ‘Acknowledgement of Bringing Up Adopted Child’ document dated 6 August 2009 was submitted in support of her adoption of Master Nguyen. According to her earlier statement of 10 May 2011, this was during a period when she and Mr Ho were living in the same house in Vietnam. This house is noted in Vietnamese Household Registers submitted with the Child visa application as the residence of Master Nguyen. At Departmental interviews on 23 March 2016 and 6 October 2016 she gave conflicting information indicating initially she didn’t tell her husband about the adoption for fear of his reaction (which is also indicated in a Statutory Declaration dated 14 May 2015 from her in the Child visa application file) and then subsequently she said that her husband handled all of the paper work and she told the agent she had no children because they didn’t ask about adopted children. Further, the Tribunal raised with the applicant that her oral evidence contained conflicting information with the aforementioned material regarding her length of residence with Mr Ho in Vietnam.

21. The Tribunal advised that the above information is relevant to the review as it tends to suggest that false or misleading information has been provided to the Department and the Tribunal in relation to the Child visa application and this casts doubt upon her credibility and that of all witnesses who have provided supporting evidence for her, and also on the documentary evidence submitted in support of the visa application. Accordingly, the Tribunal advised that if it relied upon the information it would be the reason or part of the reason to affirm the decision under review. Following an adjournment to confer with her representative, the review applicant confirmed she understood why the information is relevant to the review.

22. The review applicant was offered an adjournment before commenting on or responding to this information, however she chose to respond immediately. She advised that initially she had no intention of giving false or misleading information to the Department or the Tribunal. She advised the reason she did not mention her adopted son was for fear of risking the relationship with Mr Ho. She added that she provided financial support and maintained contact with the visa applicant from Australia. She follows his performance at school and his daily activities. The review applicant advised that even now living in Australia she fulfills the parental role with the visa applicant. She cited that his biological parents are divorced and other family members are getting older so they can’t look after him like they used to. She wants the visa applicant to come to Australia so she can fulfil her parental duties. The Tribunal has very carefully considered the review applicant’s response in its decision making process.

23. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised the following information with the review applicant. The Department of Immigration file OSF2015/071577, regarding the Child visa application, contains Vietnamese Household Registers indicating that Master Nguyen was listed at the same residence as his biological mother, siblings, grandmother and then the review applicant over various periods. At the Departmental interview on 23 March 2016 the review applicant indicated Master Nguyen’s biological mother, his two siblings and his grandmother were also living at the same address as her in Vietnam. At interview on 6 October 2016 the review applicant also said Master Nguyen was added to her Household Register to assist the Child visa application. The Vietnamese Household Registers and the review applicant’s interview responses indicate that Master Nguyen has lived with his biological mother and siblings since his birth until at least October 2016. The Tribunal also raised that the review applicant had provided conflicting information in her oral evidence regarding Master Nguyen’s residential situation. Further, the review applicant made no mention of Master Nguyen in her Partner visa application. Additionally, a School Report dated 24 October 2015 for Master Nguyen indicates his parents are Thuy Vy Nguyen and Vinh Thanh Nguyen, listing the same residential address which has been continuously displayed in the Household Registers for Master Nguyen.

1. The Tribunal advised that the above information is relevant to the review as it tends to suggest that false or misleading information has been provided to the Department and the Tribunal in relation to the Child visa application and this casts doubt upon her credibility and that of all witnesses who have provided supporting evidence for her, and also on the documentary evidence submitted in support of the visa application. Accordingly, the Tribunal advised that if it relied upon the information it would be the reason or part of the reason to affirm the decision under review. The review applicant confirmed she understood why the information is relevant to the review.

2. The review applicant was offered an adjournment before commenting on or responding to this information, however she chose to respond immediately. She advised that in relation to the Household Registers, after the visa applicant was born the Registers were made but he did not live there as stated. The review applicant indicated that with regard to schooling matters it was more convenient to enroll him in school with the recorded details then later she approached the school to amend them but was informed there was no need to change the records. She advised that she lived with Mr Ho as husband and wife when he had the opportunity to stay at her residence. The review applicant maintained that she looked after the visa applicant since he was born, provides financial support, ensures he is looked after, still maintains contact, follows his progress and that she has performed the parental role in respect of him. She added that all statements are true. The Tribunal has very carefully considered the review applicant’s response in its decision making process.

3. The Tribunal took oral evidence from Ms Thi Kim ‘Dung’ Tran, the sister of the review applicant and maternal grandmother of the visa applicant. She is visiting Australia. Her evidence may be summarised as follows. She is looking after the visa applicant in Vietnam on behalf of the review applicant. She is getting older and wants the visa applicant to come to Australia so the review applicant can look after him. She advised that when the visa applicant was little he was asked to call the review applicant ‘auntie’ and then subsequently ‘mother’. The review applicant adopted the visa applicant when he was 5 years old. Ms Tran confirmed that at the time of the adoption the only persons living in her residence were the review applicant, her brother, sister in law, the visa applicant and herself. She confirmed there were no others than these 5 persons. Ms Tran advised that the biological mother of the visa applicant (her daughter) lived in their residence until the boy was 12 months old then left. Ms Tran stated that the biological father of the visa applicant never lived in the same house as him and visited occasionally. Ms Tran indicated the visa applicant had never lived with his two sisters. Ms Tran also advised that her younger brother got divorced and moved out to Australia in 2016 by marrying someone, although she did not know who that person is. She confirmed nobody else had lived in the residence with the visa applicant other than as stated. 

4. Ms Tran advised that the visa applicant still lives with her and the sister in law in Vietnam. Whilst she visits Australia, the sister in law is looking after him. Ms Tran indicated she sees herself as the grandmother of the visa applicant and since the review applicant left Vietnam she has looked after him. Ms Tran informed the Tribunal that the biological parents of the visa applicant provide no support to him and that the review applicant has assumed the parental role in relation to him since he was little.

5. Ms Tran explained that the review applicant came to be living in Australia through her marriage to Mr Thanh Long Ho. She is not sure how they met. She herself met Mr Ho when he visited her residence in Vietnam. Ms Tran then stated that the review applicant and Mr Ho lived together at this residence. The Tribunal raised with Ms Tran that she did not earlier advise Mr Ho was living in the same residence and she replied that he is not related to them. The Tribunal noted that it did not ask her if he was related, rather it earlier asked the occupants of the residence. Ms Tran responded that Mr Ho would visit and stay for periods of 3 days to 1 week then visit his own parents.

6. Ms Tran maintained that Mr Ho did not learn of the adoption of the visa applicant by the review applicant until the latter came to be living in Australia. She advised that when he lived in their residence for periods of time the visa applicant was introduced as a nephew to him. Ms Tran indicated neither she nor the review applicant spoke to Mr Ho of the adoption until the review applicant had moved to Australia. Ms Tran wants the visa applicant to move to Australia. Following Ms Tran’s evidence, the review applicant indicated that truthful evidence had been provided, she wants the visa applicant in Australia and she wants to fulfil her duty as a mother.

7. Following an adjournment, pursuant to the provisions of s.359AA of the Act, the Tribunal raised the following information with the review applicant. During the hearing Ms ‘Dung’ Tran indicated that until Master Nguyen was 12 months old his biological mother lived with him in the same residence but not his biological father. The review applicant, however, indicated the biological father also lived in the same residence for that period of time. Further, Ms Tran also initially failed to mention that Mr Ho lived in the same residence as Master Nguyen. Additionally, Ms Tran advised that she has looked after Master Nguyen since the review applicant moved to Australia.

8. The Tribunal advised that the above information is relevant to the review as it tends to suggest that inconsistent, false or misleading information has been provided to the Department and the Tribunal in relation to the Child visa application and this casts doubt upon her credibility and that of all witnesses who have provided supporting evidence for her, and also on the documentary evidence submitted in support of the visa application. Accordingly, the Tribunal advised that if it relied upon the information it would be the reason or part of the reason to affirm the decision under review. The review applicant confirmed she understood why the information is relevant to the review.

9. The review applicant was offered an adjournment before commenting on or responding to this information, however she chose to respond immediately. She advised that she has performed the parental role since the visa applicant was born and she wants to fulfil her duty as a mother. She wants to make up for lost time. As a Christian she has provided truthful evidence. She asked the Tribunal to be compassionate and reunite her with the visa applicant. The Tribunal has very carefully considered the review applicant’s response in its decision making process. The review applicant concluded her oral evidence by noting that she feared telling Mr Ho about the adoption and that everything went bad after she didn’t tell him about it.

   Analysis

10. The Tribunal notes that in determining whether it is satisfied that prescribed criteria for a visa are met, it is not required to uncritically accept the evidence of an applicant. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:

    A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

11. Similarly, the Tribunal notes the following observations of McHugh J in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]:

    If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

12. The Tribunal has carefully assessed the evidence in the present matter. As previously outlined, there are significant discrepancies and inconsistencies in the information contained in the review applicant’s Partner visa application, that provided by her in oral evidence and that provided by Ms ‘Dung’ Tran in oral evidence. Such evidentiary problems pertain to the residential situation of the visa applicant (particularly the occupants of the residence), the length of residence together in Vietnam of the review applicant and Mr Ho, the proximity of the visa applicant’s biological parents to him, and the reasons for omitting reference to the visa applicant in the review applicant’s Partner visa application. Due to the aforementioned matters, the Tribunal has developed serious concerns with respect to the credibility of both the review applicant and Ms ‘Dung’ Tran.

13. The Tribunal finds it implausible that the review applicant was residing with Mr Ho in Vietnam at the time she formally adopted the visa applicant, yet at that time he did not know of this or of the review applicant’s assumption of a parental role in relation to the child. The Tribunal also does not accept that the visa applicant is estranged from his biological parents and has not lived with either of them since the age of 12 months given the starkly inconsistent information provided by the review applicant in relation to her Partner and Child visa applications. It is worth pausing to reflect that as recently as March 2016 the review applicant advised the Department at interview that the biological mother of the visa applicant was living with him in the family residence in Vietnam. She also advised the Department at interview in October 2016 that the visa applicant was added to her Household Register to assist with the Child visa application. The inconsistent information provided during the review in relation to the divorce of the visa applicant’s biological parents, the presence of the visa applicant’s biological father in the family residence, the composition of that residence and the omission of the visa applicant in the review applicant’s Partner visa application, buttress the Tribunal’s conclusion that the review applicant and Ms ‘Dung’ Tran gave untruthful evidence in relation to the circumstances of the visa applicant. The Tribunal also notes that the evidence regarding the care of the visa applicant indicates the review applicant has played a minimal role since moving to Australia in 2012. Further, the School Report of 24 October 2015 tends to suggest that the visa applicant’s parents remained involved in his life at that time, which is at odds with the contentions of the review applicant.

14. Having considered all of the evidence, the Tribunal does not accept that the review applicant ‘assumed a parental role’ in relation to the visa applicant under formal adoption arrangements made in accordance with the law of Vietnam. The Tribunal finds that the formal adoption of the visa applicant was conducted by the review applicant in a contrived fashion in an attempt to secure a future migration outcome. The Tribunal does not accept that at the time of application for the Child visa the biological mother of the visa applicant was living separately to him given that portions of the evidence outlined above indicate she was living in the family residence as recently as 2016. It follows that the Tribunal does not accept the review applicant had assumed a parental role in relation to the visa applicant at that time. Nor does the Tribunal accept that the review applicant maintains a parental role at the time of this decision.

15. The Tribunal finds that the review applicant, aided by her sister Ms Thi Kim ‘Dung’ Tran, has deceitfully attempted to feign an adoptive parental role in relation to the visa applicant in order to secure a migration outcome. Following careful consideration of the evidence, the Tribunal finds that the visa applicant does not satisfy the requirements of r.1.04(1). It follows that he does not satisfy the requirements of r.1.14A(2) and therefore he is not the child of the review applicant within the meaning of s.5CA of the Act. Therefore, the Tribunal finds that the visa applicant is not the dependent child of the review applicant as defined in r.1.03. Accordingly, cl.101.211(1)(a) is not satisfied at the time of application by the visa applicant. It follows that this requirement is not satisfied at the time of this decision.

16. For the reasons above, the criteria in cl.101.211 and 101.221(1) are not satisfied by the visa applicant. Accordingly, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    K. Chapman
    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.

    …