2110626 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, brought by an applicant adopted in Papua New Guinea by their uncle and aunt, who were permanent residents in Australia. The dispute centred on whether the customary adoption, subsequently ratified by a court in Papua New Guinea, met the requirements of the Migration Regulations 1994. The Tribunal was tasked with determining the validity of the adoption in the context of the visa application.

The primary legal issues before the Tribunal were whether the applicant's adoption satisfied the criteria outlined in clauses 802.212 and 802.213 of Schedule 2 to the Migration Regulations. Specifically, the Tribunal had to consider whether the applicant qualified as the dependent child of a permanent resident under section 5CA of the Act, and whether the adoption met the additional requirements for customary adoptions as set out in regulation 1.04. The Tribunal also had to assess whether the adoptive parents had resided outside Australia for more than 12 months at the time of the adoption, or if compelling or compassionate circumstances warranted an exception.

The Tribunal found that the applicant's adoption met the requirements of regulation 1.04(1)(b) as a formal overseas adoption, by reason of its subsequent ratification by the courts in Papua New Guinea. This meant that the applicant was considered the dependent child of their adoptive parents, who were permanent residents in Australia, and thus satisfied clause 802.212. The Tribunal also determined that the applicant met the criteria under clause 802.213, specifically subclause (5), as the adoption took place in an overseas country, the adoptive parents were permanent residents at the time, and the requirement regarding residence outside Australia for more than 12 months was either not applicable or could be waived due to compelling or compassionate circumstances.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with a direction that the applicant met the criteria for clause 802.212 and 802.213 of Schedule 2 to the Regulations.