2100359 (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the review applicant sought to establish that the visa applicant was his biological child. The visa applicant had been formally adopted in Vietnam in 2011 by the review applicant's sister and her husband. The review applicant contended that despite the formal adoption, the visa applicant remained his biological child and that the adoption had effectively ceased under Vietnamese law, supported by evidence of money transfers and the visa applicant's continued recognition as his biological child. The Department had previously decided that the legal adoption remained in effect, meaning the visa applicant was considered the child of the adoptive parents and not the review applicant.

The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 101 visa, specifically whether she was a "dependent child" of an Australian citizen at the time of application and decision, and whether she was the biological child of the review applicant, or an adopted child in a manner that satisfied the visa requirements. The core of the dispute centred on the legal effect of the Vietnamese adoption and whether it had ceased to be in force, thereby re-establishing the biological parent-child relationship for migration purposes.

The Tribunal affirmed the decision not to grant the visa. It applied the criteria in clause 101.211 of the Migration Regulations 1994, which requires the visa applicant to be a dependent child of an Australian citizen and, relevantly, to be the child (other than an adopted child) of that citizen. The Tribunal found that while the review applicant was recognised as the visa applicant's biological parent after the adoption, the formal legal adoption under Vietnamese law was still in effect. Consequently, the visa applicant was legally considered the child of her adoptive parents, not the review applicant, and therefore did not meet the criterion of being the biological child of the sponsor. The Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met.