1910993 (MIGRATION)

This case concerned an appeal by a child (the applicant) against a decision regarding their application for a Child (Residence) (Class BT) visa, Subclass 802. The applicant was the grand-daughter of the sponsor, Mr A, and his deceased wife, Mrs A. The dispute centred on whether the adoption process undertaken by Mr A and Mrs A met the requirements of the Migration Regulations 1994 for the grant of the visa. The decision was made by Michael Cooke, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements for adoption as stipulated in clause 802.213(1) of the Migration Regulations. This involved determining if the adoption, which was approved by authorities in the applicant's home country and subsequently by an Australian court, satisfied the conditions for a child visa, particularly concerning the status of the adoptive parents and the nature of the adoption process.

The Tribunal reasoned that while the Department of Communities and Justice does not typically involve itself in inter-family adoptions, the circumstances of this case involved a customary adoption by the sponsor's wife, with the consent of the applicant's mother. This adoption was approved by authorities in the applicant's home country and a court in Australia. The Tribunal found that the applicant met several criteria for the Subclass 802 visa, including clauses 802.212, 802.213(1), and 802.221.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, directing that the applicant met the specified criteria for the visa. The matter was to be reconsidered to address any remaining criteria for the grant of the Child (Residence) (Class BT) visa.