2011538 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant was the subject of an overseas adoption by an Australian citizen. The core dispute revolved around whether the applicant met certain criteria under clause 802.213 of the Migration Regulations 1994, specifically concerning the adoptive parent's residence overseas and the existence of compelling or compassionate circumstances that might waive this requirement.

The Tribunal was required to determine whether the applicant met the requirements of clauses 802.213(5)(b)(ii), (c), and (d). Clause 802.213(5)(b)(ii) relates to whether compelling or compassionate circumstances exist such that the usual requirement for the adoptive parent to have resided overseas for more than 12 months should not apply. The Tribunal also had to consider whether the adoptive parent's overseas residence was contrived to circumvent Australian entry requirements for adopted children, and whether lawful and permanent parental rights had been acquired.

The Tribunal found that the delegate's interpretation of clause 802.213(5)(b)(ii) was too narrow, limiting the scope of "compelling or compassionate circumstances" solely to the reasons why the sponsor or their spouse could not reside overseas for the specified 12-month period. The Tribunal reviewed both the law and departmental policy, concluding that there was no basis for such a restrictive interpretation. The policy indicated that officers could exercise their own judgment in assessing "compelling or compassionate" circumstances, with no further specific guidance provided. Consequently, the Tribunal determined that the delegate's restrictive approach was not supported.

Given these findings, the Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration. The reconsideration was to proceed with the direction that the applicant met the criteria under clause 802.213 of Schedule 2 to the Regulations. The Tribunal noted the distressed child at the centre of the case and expressed appreciation for any efforts by the Department of Home Affairs to expedite the matter.