2306118 (Migration)

The Administrative Appeals Tribunal considered a Child (Migrant) (Class AH) visa application, specifically for a Subclass 102 (Adoption) visa. The applicant sought to migrate to Australia based on an adoption by a sponsor, [Mr A]. The central dispute revolved around whether the sponsor met the residency requirements stipulated in clause 102.211(2)(b)(ii) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the sponsor, [Mr A], had been residing overseas for more than 12 months at the time the visa application was lodged, as mandated by clause 102.211(2)(b)(ii). This clause is a critical criterion for granting a Subclass 102 visa, requiring the adoptive parent to have been living abroad for the specified period. The Tribunal also considered other subclauses of 102.211, including whether the adoption was recognised by Australian authorities or met the requirements of the Adoption Convention, and whether the sponsor had lawfully acquired full and permanent parental rights.

The Tribunal's reasoning focused on the sponsor's declared residential history. While the sponsor was an Australian citizen and had adopted the visa applicant overseas, departmental records indicated that he was residing in Australia at the time the visa application was lodged. Furthermore, in the 12 months immediately preceding the application, he had spent only 69 days outside Australia. This factual finding led the Tribunal to conclude that the requirement in clause 102.211(2)(b)(ii) was not met. However, the Tribunal also noted that the adoption order was recognised and validated by a court in Country 2, and that the sponsor had lawfully acquired full and permanent parental rights. Despite the delegate's previous decision that the residency requirement was not met, the Tribunal found that the visa applicant satisfied the requirements of clause 102.211.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration. The direction was that the visa applicant meets the criteria set out in clause 102.211 of Schedule 2 to the Regulations.