1728443 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by a young applicant residing in Australia. The applicant, adopted by Australian citizens, sought to meet the visa criteria, including those relating to being a dependent child of an Australian relative. The core of the dispute revolved around whether the applicant had become a dependent child of her adoptive parents since her last application for a substantive visa, a requirement under clause 802.211 of the Migration Regulations 1994, particularly in light of section 48 of the Migration Act 1958 which restricted further visa applications due to previous visa refusals. The Administrative Appeals Tribunal was required to determine the operative date of the applicant's adoption for the purposes of meeting this criterion.

The Tribunal was tasked with determining when the applicant legally became a "dependent child" of her adoptive parents under the Migration Act and Regulations. Specifically, the Tribunal had to ascertain if this status arose after the applicant's last substantive visa application on 23 November 2012, as required by clause 802.211(b). This involved considering the effect of a Filipino adoption order made in July 2009 and a subsequent Australian adoption order made in May 2016, in relation to the definition of an "adopted child" and the cessation of previous parent-child relationships under regulation 1.14A. The Tribunal also had to consider the application of section 48, which barred the applicant from applying for most visas due to prior visa refusals.

The Tribunal reasoned that under migration law, an adopted child becomes the child of the adoptive parents at the time of adoption, and any prior parental relationship ceases to be recognised. It found that the Filipino adoption order of July 2009 legally recognised the adoptive parents as the applicant's parents, establishing the parent-child relationship and the applicant's status as a dependent child at that time. Although an Australian adoption order was made later, the Tribunal concluded that the critical event for the purposes of the visa criteria was the initial legal adoption in the Philippines. Therefore, the applicant had become a dependent child prior to her last substantive visa application, meaning she did not meet the requirement of clause 802.211(b). Consequently, the Tribunal affirmed the decision to refuse the visa. However, noting the exceptional circumstances, the Tribunal referred the matter to the Minister for consideration under section 351 of the Migration Act.