1808632 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, originally made under subclass 837 (Orphan Relative). The applicant sought review of a decision made by the Administrative Appeals Tribunal. The applicant had lived in Australia for most of their life with the sponsor, who had adopted the applicant. The sponsor had also been granted a waiver of the 12-month overseas residence requirement due to compelling and compassionate circumstances.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 802 visa, specifically concerning the definition of a "dependent child," the sponsorship requirements, the age requirement, and the adoption criteria as set out in Schedule 2 of the Migration Regulations 1994. The Tribunal also considered the impact of a prior court order granting guardianship of the applicant to the sponsor, which preceded the formal adoption.

The Tribunal found that the applicant met the definition of a dependent child as they were under 18 at the time of application and decision. It was satisfied that the sponsor, an Australian citizen, met the sponsorship requirements under clause 802.215(b) and that the applicant met the age requirement under clause 802.221. Crucially, the Tribunal was satisfied that the adoption was lawful and that the sponsor had acquired full and permanent parental rights, fulfilling the requirements of clause 802.213(5)(d), despite the adoption occurring in an overseas country and the sponsor not having resided overseas for the requisite 12 months, due to compelling and compassionate circumstances.

The Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria under clauses 802.212, 802.213, 802.215, and 802.221 of Schedule 2 to the Regulations.