1801823 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption), to a South Sudanese national, referred to as Miss A. The review applicant was Mrs B, who, along with her husband Mr B, had adopted Miss A in South Sudan in January 2012. The visa application was lodged on 31 October 2017.

The primary legal issue before the Tribunal was whether Miss A met the criteria for the grant of a Subclass 102 visa at the time of application. Specifically, the delegate had refused the visa on the basis that clause 102.211(2)(b)(ii) of the Migration Regulations 1994 (Cth) was not satisfied, as neither Mr nor Mrs B had resided overseas for more than 12 months at the time the application was lodged.

The Tribunal considered the evidence presented by Mr and Mrs B regarding their adoption of Miss A and their desire for her to live with them in Australia. Despite acknowledging the moving nature of their evidence and their commitment to Miss A, the Tribunal found that the criterion in clause 102.211(2)(b)(ii) was a mandatory requirement and that there was no discretion to waive or ignore it. As neither Mr nor Mrs B met the requirement of having resided overseas for more than 12 months at the time of the visa application, the Tribunal concluded that Miss A did not meet the eligibility criteria for the visa. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.