1815855 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa (subclass 802). The applicant, born in [date], arrived in Australia on 28 March 2013 and subsequently applied for the visa on 12 July 2017. The core of the dispute revolved around whether the applicant met the criteria under clause 802.213 of the Migration Regulations 1994, specifically concerning the approval of the adoptive parents by a competent authority in Australia prior to the adoption. The Administrative Appeals Tribunal (the Tribunal) was required to determine if the applicant had satisfied these requirements.

The Tribunal was tasked with assessing whether the applicant's adoptive parents had received approval from a competent authority in Australia as suitable adoptive parents before the adoption took place, as stipulated by clause 802.213(4)(b). The applicant's adoptive parents were his aunt and uncle, and he had been living with them since shortly after his birth. An Adoption Order from the Supreme Court of New South Wales was provided, confirming the adoption. However, the Department's delegate had determined that the applicant had not met the requirements of clause 802.213. The Tribunal considered evidence provided by the applicant, including an Intra-family Adoption Assessment Report dated 20 January 2017, which had been provided to the Supreme Court of NSW.

The Tribunal noted that the applicant was under 18 when the adoption took place and that the adoptive parents were Australian citizens at the time of the adoption. The key issue was the requirement for prior approval by a competent authority. While the applicant provided a detailed Intra-family Adoption Assessment Report and other supporting documents such as Working With Children Checks and Police Clearance Checks, the Tribunal found that these did not satisfy the specific requirement of clause 802.213(4)(b) that a competent authority in Australia had approved the adoptive parents as suitable prior to the adoption. The Tribunal concluded that the decision under review should be affirmed. The Tribunal also considered that the case presented unique or exceptional circumstances, including strong compassionate grounds and unintended consequences of legislation, which might warrant Ministerial intervention.