收养子女移民的最新要求,无注册的收养关系无法被认可

在上个星期的FCC 的裁定中 Minister for Immigration v Abigail & Anor [2014] FCCA 2532 (6 November 2014) ,彻底断绝了没有政府注册的在1992年4月1日之前的事实收养关系申请子女或父母签证的可能。
申请人成功的用事后追认的民政部门的证明在Mrt胜诉,移民不服Mrt的决定在FCC上诉。FCC 裁定申请人和支持申请人的Mrt 败诉,移民局胜诉。在这个裁定之前,申请收养类子女签证,或者收养子女担保担保养父母是可以通过县级以上民政机关事后出文件追认的。
这个裁定明确要求,在收养的当时,这个关于必须是当时注册的。事后追认不能等同于当时注册。
In the circumstances, it is not surprising that the Tribunal made its decision by reference to the Bureau Certificate. However, contrary to the Tribunal’s ultimate finding of fact, the Bureau Certificate made it plain, on its face, that Ms Liao’s adoption had not been registered. There was no other evidence which suggested that the adoption had been registered and there was no discussion by the Tribunal of any interpretation of art.15 of China’s Adoption Law which would support a reasoned conclusion that the issuance of the Bureau Certificate certifying the relevant history was anything more than that and, in particular, was evidence of a registration which the certificate itself certified had not occurred.

收养子女和父母的关系是通过 以下法律定义组合规定的
reg 1.03 定义的什么叫做child
5.Regulation 1.03 of the Regulations relevantly provides:◦ dependent child, of a person, means the child or stepchild 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…

reg 1.14 定义了收养子女
6.The definition of “child” in s.5CA of the Migration Act 1958 (“Act”) includes someone who is an adopted child within the meaning of the Act. Regulation 1.14A, which defines the term “parent and child”, relevantly provides:◦ 1.14A Parent and child ◾ …
◾ (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).

reg 1.04 定义了收养行为的要求包括正式收养和非正式的收养

7.Regulation 1.04 relevantly provides:◦ 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: ◾ …
◾ (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;(正式的收养) 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 childparent 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

非正式收益必须在法律未有明文规定之前,或者在极端情况下无法按照法律执行 (一般来说国家战乱)

◾ (ii) the arrangements have not been contrived to circumvent Australian migration requirements.

中国收养法1992 年规定,收养关系必须在县级以上民政部门注册.
现在如果你们的收养关系没有政府注册,已经这种事实的关系申请澳大利亚签证志杰移民也是无能为力。

关于 李博
李博,移民代理,管理学学士,移民法硕士。2003年留学来澳,曾在悉尼大学,国立大学学习法律课程并获得移民代理注册。帮助众多客户处理留学,移民过程中的签证相关问题。善于解决各类移民法律疑难问题。

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