Tran (Migration)

[2019] AATA 3775

Tran (Migration) [2019] AATA 3775 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Phe Gio Tran

VISA APPLICANT:  Mr Duc Huy Tran

CASE NUMBER:  1617285

HOME AFFAIRS REFERENCE:                OSF2015/070585

MEMBER:Rosa Gagliardi

DATE:5 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 March 2019 at 11:08am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent children of the sponsor – parents unable to care for the applicant – sponsored by the applicants’ aunt – assuming a parental role for the child – adoption at the time of sponsor’s permanent residence – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5CA, 65
Migration Regulations 1994, Schedule 2 cls 101.211; rr 1.03, 1.04, 1.14

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 and Border Protection on 30 September 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 for the visa on 22 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 there was limited evidence that the applicant is a dependent child, as defined, of the sponsor.

5. The review applicant/sponsor appeared before the Tribunal on 29 November 2018 to give evidence and present arguments. The Tribunal also took evidence from the visa applicant’s biological father in Vietnam.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

8. 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

9. 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.

10. 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].

    The hearing

11. The applicant is 13 years of age.  The applicant is the biological child of the sponsor’s younger brother. 

12. The sponsor confirmed that she had adopted another child at the same time as the applicant.  This other child is the biological child of another sibling.  The other child is staying with the sponsor.   The sponsor explained that her other adopted child sponsored his parents to Australia.  The Tribunal noted that it appeared that that particular adoption had been for the purpose of enabling the whole family to migrate to Australia.  The Tribunal stated that it appeared that she had not adopted that child because she had assumed a parental role over the child.  On the contrary it appeared that the child wanted to be with his biological parents. 

13. The sponsor stated that the adoption occurred because she did not have children of her own.  She wished to have a child.  She is unable to give birth.  The Tribunal noted, however, that it appeared that the child she had adopted and was already in Australia, was closer to his biological parents than the sponsor.  The sponsor stated that the child’s biological parent’s visa was still under consideration and they were not yet in Australia. The sponsor stated it was only that he missed his mother and his brother.  She stated that the child was compassionate and was concerned for his father’s health.

14. In respect of the applicant of this application, the sponsor stated that the parents are not able to care for the applicant.  The father is working as a driver.  The applicant’s mother sells things. 

15. The sponsor’s brother had also adopted the applicant’s biological brother many years ago and was living in Australia.  The adopted brother is now 25 years old.  The sponsor explained that the applicant’s brother has completed university studies.

16. The Tribunal asked the sponsor why her brother had also not adopted the applicant so that the siblings could remain together.  The sponsor stated that the applicant was raised by her.  She was present at the birth and then brought him up until she left Vietnam.  She had a deep relationship with him.  She did not immediately adopt him at birth because it was only later that she developed a bond.  She bathed him and fed him and changed his nappies and she took his parents’ place while they were working.  She and the applicant’s parents were living in the home of their mother as an extended family.  The Tribunal noted that such tasks, given she was also living in the home with her mother and her sibling are what any aunt might do for a nephew and that it could be expected that her mother also played a role in raising the child.  The sponsor stated, “I know but I am infertile and cannot give birth and I wish to have a child.  His parents love me and know that I like children a lot and his parents do not have capacity to look after him.  Because of their love for me they gave me the child”; she longed for a child.

17. The Tribunal noted that the child had not been included in her Prospective Spouse visa application.  The sponsor stated that she did not think about it.  She stated that no one told her about those things.  She asked an agent to assist with her own migration to Australia.  The Tribunal stated that it was perplexing that she would not have told the migration agent that she had a child from whom she did not want to be separated.  She stated that had she known, she would have nominated the applicant. 

18. The Tribunal asked about the applicant’s parents.  She stated that their work is not sufficient to enable them to feed themselves. 

19. The sponsor stated that she worked two jobs – in hairdressing and in a medication factory (full time job) 7am to 6.00pm and dedicated her life towards her adopted children.

20. She stated that her brother and husband gave up the second child (the applicant) for adoption to Australia because they do not have capacity to raise him.  She stated that she is worried that the child’s future life will not be very good.  The Tribunal noted that both parents were working, but the sponsor responded that it was not enough even for the parents. 

21. The applicant’s father, Mr Tran, stated that since birth the sponsor was looking after the child.  He was replacing the sponsor and taking care of the child.  Then he wanted to give the child back to the sponsor.  In terms of the first child, Mr Tran stated that he adopted him out to Australia many years ago.  At that time life was very difficult and he had to work very hard, that is why he had to give up the first child.  His work was not stable and it was very hard.  Now he had been unemployed since March.  His wife was selling things and some days the business was good and some were not.  He stated that life was very difficult.  The Tribunal noted that simply because life was difficult, did not necessarily mean that he did not have a parental role in the applicant’s life.  He stated that after he gave up the first child he wanted to have another child but life in Vietnam is not very stable.  He stated that yes, he could give the applicant food and schooling, but there was no guarantee that it could happen all the time.  From the time of pregnancy, and time of birth, his sister looked after the child.  He stated that his life was very difficult and his sister, the sponsor, worked, and that is why she helped and looked after the applicant. 

22. Mr Tran stated that if he left the applicant to a stranger then his welfare might be compromised but he had peace of mind with his sister.  At that time she adopted him she was not married so she worked and had money.  When she married she was unable to have children and used her earnings to look after the applicant. 

23. The Tribunal asked whether the adoption had occurred because he wanted a better future for the applicant.  He stated, “That is correct”.  He stated that he and his wife felt uneasy but they had to give up the child.  He stated that they felt very concerned about it and experienced discomfort with the situation but how could he actually take care of the applicant in the future – so despite how they felt, they had to give him to the adopted mother.  He stated that he was only taking care of the applicant on an interim basis until the applicant could go and live with the sponsor. 

    FINDINGS AND REASONING

24. The applicant was born on 6 May 2005 and is now 13 years of age.  At the time of application he was 10 years of age.  The Tribunal also accepts that the applicant is not married and not engaged to be married.

25. Accordingly, cl.101.211(1)(a) is met at the time of application, and continues to be met at the time of decision.  This is because an applicant for a child visa who is under 18 years is a ‘dependent child’ merely by fact of their age and does not require consideration of whether they are also ‘dependent’ within the meaning of r.1.05.

    Child-parent relationship

26. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one, which are the applicant’s circumstances: cl.101.211(1)(c).

27. The sponsor was granted a subclass 300 Prospective Marriage (Temporary)(Class TO) visa on 29 November 2005 based on the sponsorship by Mr TRAN Van Dung.  The sponsor adopted the applicant on 14 December 2005.  A Decision for Recognition of Adoption (Vietnam) states that the applicant was given to the sponsor as an adopted child on this date.  The sponsor migrated to Australia on 17 December 2005, and was granted a subclass 820 Partner (Migrant) Class UK visa on 20 April 2006, based on the sponsorship by Mr Tran.  The sponsor became an Australia Citizen on 7 September 2010.  This requirement is met.

28. Regulation 1.03 provides that the term ‘adoption’ has the meaning set out in r.1.04 of the Regulations. 

    Reg 1.04    Adoption  

    (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.

29. In making its decision the Tribunal considers that it is not enough that a sponsor simply adopt a child under the law of another country for the applicant to fulfil the requirements of the visa.  This would leave open children being adopted to circumvent Australia’s migration requirements and indeed to circumvent the often rigorous and lengthy processes that Australians undergo when they enter into intercountry adoption arrangements.  The Tribunal considers, instead, that it is required to have careful assessment of whether the sponsor has ‘assumed a parental role’ for the child to meet the definition of dependent child. 

30. To assist the Tribunal with its enquiry it has had reference to the definition of parent under the Act:

    parent without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.

31. That is:

    Section 5CA    Child of a person

    (1)  Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a)  someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b)  someone who is an adopted child of the person within the meaning of this Act.

    (2)  The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3)  Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

32. Regulation 1.14A in the Migration Act is also relevant to adopted children:

    Reg 1.14A    Parent and child  

    (1)  A reference in these Regulations to a parent includes a step-parent.

    (2)  For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):

    (a)  the child is taken to be the child of the adoptive parent or parents; and

    (b)  the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).

    Note 1:    A child cannot have more than 2 parents (other than step-parents) unless the child has been adopted under arrangements mentioned in paragraph 1.04(1)(c).

    Note 2:    Parent is defined in subsection 5(1) of the Act, andchild is defined in section 5CA of the Act.

33. The Tribunal acknowledges that the Tribunal must be careful not to limit the definition of a parent.  On the other hand, the Tribunal is required to have some evidence of the sort of relationship the applicant and the sponsor have, and whether such evidence points to the parties having a parent/child relationship. 

34. The Tribunal accepts on the evidence, by way of financial transfers to the applicant from

    
    

    10 November 2006, that the sponsor provides some monetary assistance to the applicant.  More recently the sponsor has submitted evidence of substantial funds being sent to the applicant. Financial gifts alone, however, do not automatically mean that the sponsor has assumed a parental role in terms of the applicant.  This is particularly so as the sponsor has provided limited evidence about how such funds are used on a day to day by the applicant.  On the evidence, the Tribunal questions whether the funds might not be being used by the applicant’s household (his biological parents) in general, rather than specifically for the applicant, given the applicant’s father’s statements at hearing that life was very hard in Vietnam.

35. The limited other evidence before the Tribunal, apart from the sponsor’s assertions at hearing that she loved the child and was concerned for the child’s future if he remained in Vietnam, are not persuasive evidence that the sponsor adopted the child because she has assumed a parental role that is above and beyond the parenting role undertaken by the applicant’s biological parents.

36. There are other aspects about this application which lead the Tribunal to have serious doubts as to the motivation behind the adoption. 

37. For example, the Tribunal finds the timing of the adoption of concern.  The sponsor officially adopted the applicant 7 months after he was born.  This was only 2 weeks after the sponsor was granted a temporary visa to Australia, and 3 days before the sponsor migrated to Australia.  The proximity of the sponsor’s grant of her visa to the timing of the adoption, leave the Tribunal to query whether the adoption was not solely a device to enable the applicant’s migration to Australia. 

38. The applicant at hearing asserted that she was present at the birth of the child and that the parent/child relationship had commenced when the child was born, if not before.  The Tribunal had a discussion at hearing about why the sponsor, if she had perceived the applicant as her child, had not, in the process of applying for a subclass 300 visa, indicated that she had a dependent. 

39. It would not be expected that the sponsor at the time of application could have envisaged the applicant as her dependent, three years’ prior to the application of her Prospective Marriage visa on 14 August 2003.  The Tribunal does consider, however, that if the sponsor and applicant had immediately on birth assumed a parental/child relationship, that it was open to her before the Department made a decision on her Prospective Marriage visa, to advise that her circumstances had changed and that she now had a child/dependent to consider, and needed to amend her application in the seven months prior to being granted her own visa to Australia. 

40. The Tribunal considers it is reasonable to assume that the sponsor would not have wanted to have been separated from the applicant and would have wanted to stay behind in Vietnam until both her own status and that of the child could be resolved in terms of migrating to Australia.  Instead the sponsor secured her own migration at first instance and it is almost like the adoption was an after-thought, which is inconsistent with the serious life decision to take on a child as a parent.

1. What is most relevant in terms of the timing of the adoption is that the Tribunal has doubts about whether the sponsor would have adopted the child had she not migrated to Australia.  The Tribunal is not convinced that she would have done so.

2. The Tribunal notes that when the sponsor was interviewed by the Department about the reasons she adopted the child, she stated that she was single, had enough income and the applicant was cute and she loved him so much.  The Tribunal notes that the delegate placed adverse weight on the fact that the sponsor stated to the Department that she was single when in fact at that time she was in a relationship and had applied for a Prospective Marriage visa.  While the Tribunal accepts this could be seen as the sponsor providing inconsistent information, the Tribunal fails to see how it is relevant to its inquiry as to whether or not the applicant and sponsor have, and had, at time of application, a child/parent relationship. 

3. The sponsor’s explanations for why she wanted to adopt the child at the time of application (above), and the timing, raise questions about whether the applicant had taken a serious decision to assume a parental role over the child, with all the concomitant demands that this would place on her and her future husband.  Rather, the applicant’s statements to the Department reinforce the Tribunal’s concerns that the decision to adopt the child was not consistent with a serious life decision to parent a child, and reinforces its concerns that the arrangement may have been entered into for the sole purpose of enabling the applicant to migrate to Australia.  This is particularly so as there is a paucity of evidence regarding how the sponsor lives out her parenting role to the applicant on a day to day basis.

4. The sponsor’s movement records show that she returned to Vietnam three years after she migrated to Australia.  In the past 10 years (at the time of the Department’s decision on

   
   

   30 September 2016), the applicant had returned four times to Vietnam.  The sponsor told the Department that her lack of ability to travel regularly was due to her work commitments.  The last visit to Vietnam before the Department made its decision in 2016, was in February 2013.  After the Departmental decision, the sponsor travelled again in 2017 and in 2018 for roughly one month at a time.

5. The Tribunal has considered the migration agent’s submission dated 26 November 2018, in relation to the delegate’s concerns about the irregularity of the sponsor’s visits to Vietnam prior to the Departmental decision.  It is argued, “…we respectfully submit that this is not an aspect of a relationship that can or ought to be measured against any objective metric of sufficiency.  We submit that the Sponsor’s travels to Vietnam must be considered and judged according to the Sponsor’s specific circumstances.  Importantly, the Sponsor instructs that she was previously unable to travel as frequently as she had desired or intended because she did not have stable work that allowed that much leave.  However, she has now found stable full-time employment, which has allowed her to travel much more regularly and for extended periods.  We note that the Sponsor had also made an important trip to Vietnam in 2017 for her mother’s traditional Vietnamese and Christian funeral services-during which time she spent considerable time with the Applicant, and both mother and child were sources of comfort for each other during their family’s time of mourning.  We also note that the Sponsor had been on a recent trip to Vietnam to visit the Applicant once again as recently as April-May 2018”. 

6. The Tribunal notes that the applicant initially told the Department that her work prevented her from returning to Vietnam regularly, meaning her work commitments were too extensive.  The applicant now is appearing to contradict her initial statement by saying she did not have enough work to enable her to visit the applicant.  If the applicant had meant at the time of application that she did not have enough work, this is not what she told the Department at the time.  Nonetheless, the Tribunal does not find it reasonable to place adverse weight on any such apparent contradiction.  It does ask, however, why there is a paucity of evidence that during her trips to Vietnam she had, on a day to day basis, assumed a parental role in the life of the applicant.  The Tribunal would have expected, for example, that she might have evidence of having met with the child’s teachers to directly discuss his progress in class.  Further, there is little other third party evidence that the sponsor is recognised as the adopted mother of the applicant in his home area by either officials or neighbours or others.  It is not for the Tribunal to make the applicant’s case.

7. The Tribunal has sighted the photographic material depicting the applicant and the sponsor together in Vietnam, shopping together and in household situations.  The Tribunal notes that in some photos the sponsor is showing the applicant affection. The Tribunal has no doubt that the sponsor has affection for the applicant as an aunt and as a relative as reflected in these photographs, but the Tribunal is not satisfied that the evidence is probative of the sponsor having taken on a parental role to the applicant, in any way above the role of his biological parents.

8. At hearing the applicant’s father gave evidence that he and his wife were merely taking care of the applicant until he would be able to migrate to Australia with his adoptive mother.  The Tribunal has doubts about this matter however as the applicant has been living with his biological parents since birth and the sponsor left Vietnam seven months after the child was born.  While the sponsor does not need to establish that the applicant is financially dependent on her, the Tribunal would have expected that it would see, for example, such evidence as correspondence addressed by the school to the sponsor about the progress of the applicant at school, and that she is acting directly in terms of his health and other parental responsibilities.  Little concrete evidence of the sponsor’s involvement in the care of the applicant consistent with her having assumed a parental role has been submitted.

9. The Department reports in its decision (which was provided to the Tribunal for the purposes of the review) that the sponsor stated that the applicant’s biological parents continued to make initial decisions about the applicant’s life before consulting with her.  In the migration agent’s submission of 26 November 2018, it appears that the sponsor is revising her account:

   We respectfully submit that the Delegate’s understanding and conclusion of this response is erroneous.  It is evident that the Sponsor had explained that the Applicant’s biological parents made decisions and consider options before presenting them to the Sponsor to make a final decision.  We submit that, as per the Sponsor’s instructions and consistent with her response at interview, the Applicant’s biological parents do not make any major decisions on their own before consulting the Sponsor.

10. For the purposes of the review, the Tribunal is prepared to accept that there may have been some misunderstanding in terms of what the sponsor had stated and that the sponsor did assert that the applicant’s biological parents actually consulted her about major life decisions relating to the applicant.  Given the limited evidence submitted to support these contentions, however, the Tribunal is left to query the extent to which, if any, the sponsor has assumed a parental role in the applicant’s everyday life.

11. The Tribunal is also concerned because it emerged at hearing that the sponsor’s older brother had also been sponsored by a relative (other than the sponsor) to live in Australia.  The applicant’s father at hearing stated that at the time he and his wife were living a very difficult life in Vietnam and they had no choice but to send their older child to Australia.  He stated that he also had concerns about the applicant’s living conditions in Vietnam and for his future.  The Tribunal has concerns, therefore, that the applicant may have been adopted in an attempt to join his brother in Australia and to be able to access Australia’s education system as his brother has been able to do. 

12. The applicant’s father was clear in stating that he wanted the applicant to have a good future and that he sent the applicant and his brother to Australia by way of adoption, for them both to escape the hardships of living in Vietnam.  The Tribunal does not accept that a parent/child relationship can be established just because the sponsor is in a position to provide the applicant with a greater standard of living in Australia.  Something more is required in terms of the sponsor having assumed a parental role, reflected in persuasive evidence.

13. The Tribunal has sympathy for the sponsor who stated that she was infertile and that she wanted a child(ren) and that her brother and his wife loved the sponsor so much that they wanted to give her one.  Nonetheless, the Tribunal notes that the sponsor has in fact sponsored another adopted child to Australia who is the biological child of another sibling of the sponsor.  When the Tribunal pointed out that therefore the sponsor and her husband already had a child, the sponsor stated that they wanted to have another child for the family to grow.  The Tribunal agrees that the sponsor and her husband have the right to expand their family, but the adoption of their first child through migration avenues, raises questions about whether that adoption, at least, meant that the sponsor had assumed a parental role above that of the child’s biological parents.

14. The Tribunal is cognisant that it is making a decision only about the applicant and not the child the sponsor has previously adopted.  The merits of this case need to be isolated from the circumstances of the sponsor’s previously adopted child.  Nonetheless, the sponsor adopted Master Trung Duc Long on the same day as the applicant.  Master Long lodged a subclass 101 Child (Migrant)(Class AH) visa application on 19 September 2012, based on the sponsorship of the sponsor, and the visa was granted on 6 February 2013.  The sponsor was asked at interview about her relationship with Master Long’s biological parents and the sponsor stated that the child’s father is the sponsor’s older brother. 

15. Departmental records show, however, that Master Long lodged a Subclass 143 Contributory Parent (Migrant)Class CA visa application on 24 August 2015 to sponsor his biological parents to Australia.  The sponsor was asked at interview to comment about this and she stated that the child missed his parents a lot so it was decided to sponsor them.  When this matter was put to the sponsor at hearing, the Tribunal noted that Mr Long must have been so distressed as to ask his biological parents to uproot themselves from their home country to live with their biological son, even though the sponsor had adopted him.  The migration agent cautioned the Tribunal about using the word “distressed” as he was not distressed about being separated from his parents; he merely missed them.  Nonetheless, Mr Long’s migration of his parents to Australia indicates that he needed them to be close to him on an ongoing basis and that the parental role that the sponsor had assumed was not enough for him, because it did not displace or override the role of his biological parents.

16. The Department considered that the adoption of Mr Long, and therefore that of the applicant, had been for the sole purpose of facilitating the migration of their parents to Australia.  The Tribunal is not satisfied on the evidence that this is the case.  Nonetheless, the previous adoption by the sponsor does illustrate that she has been prepared to adopt a child even when the bond between Mr Long and his biological parents as child/parents was clearly extant. 

17. The sponsor stated that it was just that her other adopted child was concerned about his father who was unwell and wanted to sponsor them here.  The Tribunal accepts that the other adopted child’s father might be unwell and that the child has a propensity to be concerned for him.  Nonetheless, this does not explain why the child the sponsor adopted does not visit his parents to provide support, instead of engaging in a long-term migration outcome to enable them to live in Australia permanently.

18. The previous adoption is by no means determinative of this review and the Tribunal places limited weight on this matter.  Focussing on the circumstances of the applicant, the Tribunal places significant weight, instead, on the limited information submitted that would persuade the Tribunal that the sponsor has assumed a parental role vis-a-vis the applicant.

19. The Tribunal is not satisfied that the applicant has made out his case given as the evidence submitted is not persuasive that the child-parent relationship between the adoptee and the adopter has been established and the Tribunal is not satisfied that the applicant is the dependent child of the sponsor.

20. Accordingly, cl.101.211(1)(c) is not met at the time of application, and does not continue to be met at the time of decision.

    Regulation 1.14A

21. The Tribunal has assessed whether the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption). For the reasons mentioned above, the Tribunal is not satisfied that the applicant is not the child of his biological parents and that they have relinquished their parental role.  A child cannot have more than two parents and as the Tribunal finds that the sponsor has not assumed a parental role, and the biological parents of the applicant continue to have a parental role, the applicant does not meet r.1.14A.

22. For the reasons above, the criteria in cl.101.211 and cl.101.221 are not met.

23. For the reasons above, 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

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

    Rosa Gagliardi
    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.