2014487 (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption). The applicant, a national of Vietnam, sought to migrate to Australia to be adopted by the sponsor, an Australian citizen. The sponsor and the applicant's biological father, who is the sponsor's brother, had an agreement for the sponsor to adopt the applicant, a practice described as common within their Vietnamese culture. The applicant had been formally adopted by the sponsor in Vietnam in 2010. The sponsor had resided in Australia since 2005, becoming an Australian citizen in 2016, and had made regular trips to Vietnam. The Tribunal affirmed the decision not to grant the visa.

The central legal issue before the Tribunal was whether the sponsor met the requirement under subclause 102.211(2)(b)(ii) of the Migration Regulations 1994, which stipulates that the adoptive parent must have been "residing overseas for more than 12 months at the time of the application." The Tribunal also considered whether this period of overseas residence needed to be continuous, a point of potential ambiguity in the legislation.

The Tribunal found that while the sponsor was an Australian citizen at the time of the adoption and had lawfully acquired full and permanent parental rights, the requirement of residing overseas for more than 12 months at the time of the application was not clearly met. The sponsor's travel records indicated a pattern of returning to Australia and then undertaking further work assignments in Vietnam, rather than a continuous 12-month period of residence overseas immediately prior to the application. The Tribunal noted the case of *Nguyet Huong Phung v MIEA*, which suggested that a period of overseas residence must be immediately prior to the application and not a past, disconnected period. Given the circumstances, the Tribunal recommended that the parties consider requesting ministerial intervention.