2016060 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child adopted by an Australian citizen. The applicant's adoptive parents had been residing overseas for 12 months prior to the application. The Administrative Appeals Tribunal, constituted by Member Justine Clarke, was tasked with reviewing the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 802.213(5)(b)(ii), (c), and (d) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if compelling or compassionate circumstances existed that would allow an exception to the requirement that the adoptive parent had not been residing overseas for more than 12 months at the time of adoption. The Tribunal also considered whether the adoptive parent's overseas residence was contrived to circumvent Australian entry requirements for adopted children and whether lawful, full, 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 could not reside overseas. The Tribunal reviewed departmental policy, which indicated that officers could exercise their own judgment in assessing compelling or compassionate circumstances without further policy guidance. Consequently, the Tribunal concluded that the delegate's restrictive approach was not supported by the law or policy. The Tribunal also noted the medical evidence concerning the sponsor's health.

The Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration. The Tribunal directed that the applicant be considered to meet clause 802.213(1) of Schedule 2 to the Regulations.