1709462 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802. The applicant sought review of a decision by the Migration Review Tribunal. The core of the dispute revolved around whether the applicant met the criteria for a dependent child under the Migration Regulations 1994 (Cth), specifically in relation to their adoptive parents.

The Tribunal was required to determine whether the applicant satisfied the definition of a dependent child as set out in regulation 1.03 of the Migration Regulations. This involved assessing whether the applicant was under 18, or if they had turned 18, whether they were dependent on their adoptive parents or incapacitated for work. Furthermore, the Tribunal needed to consider the criteria under clause 802.212(1)(a) and (2) of Schedule 2 to the Migration Regulations, which relate to the applicant being a dependent child of an Australian citizen, permanent resident, or eligible New Zealand citizen, and not having turned 25, unless an exception applied. The Tribunal also had to consider clause 802.213, which pertains to adoptions.

The Tribunal noted that it had previously found the applicant met the adoption criteria under clause 802.213. However, it had not made a specific finding regarding clause 802.212(1)(a) and (2). The Tribunal then examined the circumstances of the applicant's birth and adoption in Indonesia. The applicant was born out of wedlock to a mother with no financial means and a father who had deserted them. The birth mother's parents also did not accept responsibility for the child. A family friend was temporarily caring for the child but was unable to continue due to her own financial circumstances. The adoptive parents, who had been unable to conceive through IVF, were suggested as adoptive parents and met the birth mother, who signed a Deed of Release. The adoption was formalised by an Indonesian court in October 2014. The Tribunal concluded that, given the previous finding on adoption criteria and the need to address the dependent child definition and clause 802.212, the matter should be remitted for reconsideration.