2305171 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant was an adopted child, and the central dispute revolved around whether the adoptive parents met specific residency requirements at the time of the adoption, or if compelling or compassionate circumstances warranted a waiver of those requirements.

The primary legal issues before the Tribunal were whether the applicant met the criteria under clause 802.213(5)(b) and (c) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if, at the time of the adoption, neither adoptive parent had been residing overseas for more than 12 months, and if not, whether compelling or compassionate circumstances justified not applying this requirement. Additionally, the Tribunal needed to be satisfied that the adoptive parents' overseas residence was not contrived to circumvent the visa requirements.

The Tribunal found that, based on the evidence, neither adoptive parent had been residing overseas for more than 12 months when the adoption took place in July 2016, meaning clause 802.213(5)(b)(i) was not met. However, the Tribunal accepted that the Department had not invited submissions or evidence regarding compelling or compassionate circumstances under clause 802.213(5)(b)(ii), and that the delegate's interpretation of what circumstances could be considered for a waiver was too narrow. The Tribunal also noted that the adoptive mother had remained in her home country for a year after the adoption, and that the child had lived in Australia with the adoptive parents for most of his life, considering them his parents, suggesting the residence was not contrived.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 802.213(1) of Schedule 2 to the Regulations.