1833766 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child adopted by his aunt, who is an Australian permanent resident. The applicant, born in Fiji, arrived in Australia on a visitor visa in 2015. The adoption order was made in Fiji in 2016. The sponsor, the applicant's aunt, had been residing in Australia since 1986 and held permanent residency. The Tribunal considered the evidence presented by the applicant and sponsor, including documentary evidence relating to the adoption, identity documents, and financial records.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 802 visa, particularly in relation to the adoption. This involved determining if the Fijian adoption was recognised in Australia, and if the requirements of Regulation 802.213 of the Migration Regulations 1994 were satisfied. Specifically, the Tribunal had to consider the requirement for an adoption compliance certificate, the sponsor's residency status at the time of adoption, and whether compelling or compassionate circumstances existed to waive the requirement for the sponsor to have resided overseas for 12 months prior to the adoption.

The Tribunal reasoned that the applicant met several criteria for the Subclass 802 visa, including being a dependent child and satisfying the requirements of clauses 802.212, 802.213, 802.215, and 802.221 of the Migration Regulations. While acknowledging the complexities surrounding the recognition of Fijian adoptions in Australia, including issues with the Hague Convention and the absence of an adoption compliance certificate, the Tribunal found that the sponsor's long-term care and support of the applicant, along with evidence of financial support for extended family, constituted compelling and compassionate circumstances. The Tribunal also noted the consistent and credible evidence provided by the applicant, sponsor, and other family members.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for the Subclass 802 visa.