1902618 (Migration)

This matter concerned an application for a Child (Residence) visa (subclass 802) by a child adopted by Australian citizen parents. The applicant, born in Vietnam, was abandoned by his biological parents and raised by his grandmother before coming to Australia. His adoptive parents, who were his uncle and aunt-in-law, obtained a Parental Order from the Federal Circuit Court of Australia granting them guardianship in December 2015. Subsequently, they applied for and were granted an adoption order by the Supreme Court of New South Wales in February 2018. The Department of Home Affairs refused the visa application, finding that the applicant did not meet the adoption criteria under regulation 802.213 of the Migration Regulations 1994.

The primary legal issue before the court was whether the applicant's adoption satisfied the requirements of regulation 802.213, specifically concerning the approval by a "competent authority in Australia" and the acquisition of full and permanent parental rights. The applicant argued that the Supreme Court of New South Wales, in granting the adoption order, constituted approval by a competent authority, and that the adoption conferred the necessary parental rights. The Department contended that the adoption did not meet the specific criteria outlined in the regulations, particularly regarding the nature of the approval and the circumstances of the adoption.

The court found that the adoption order granted by the Supreme Court of New South Wales, in the context of an intra-relationship adoption where the New South Wales Department of Family and Community Services declined to intervene, satisfied the requirement of approval by a competent authority. Furthermore, the court was satisfied that the applicant had lawfully acquired full and permanent parental rights through this adoption. The court also considered that the circumstances of the adoption, including the applicant's abandonment and the adoptive parents' long-term care, did not appear contrived to circumvent Australian immigration requirements.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under clauses 802.212(1) and 802.213(5) of Schedule 2 to the Migration Regulations 1994. This indicated that the applicant had satisfied the requirements relating to being a dependent child of an adoptive parent and that the adoption itself met the necessary regulatory standards, including the acquisition of full and permanent parental rights.