Akhter (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 102 (Adoption), made by a child born in Bangladesh. The applicant sought to be recognised as the adopted daughter of an Australian citizen sponsor and her husband, who were unable to have children of their own. The dispute centred on whether the sponsor and her husband had lawfully acquired full and permanent parental rights over the applicant in accordance with the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria under subclause 102.211(2) of Schedule 2 to the Migration Regulations 1994, specifically concerning the lawful acquisition of full and permanent parental rights through adoption. This required the Tribunal to consider whether the arrangements made in Bangladesh constituted a formal adoption recognised under Australian law or, alternatively, other arrangements in the nature of adoption that satisfied the regulatory requirements, including that the sponsor had resided overseas for more than 12 months and that the overseas residence was not contrived to circumvent Australian migration requirements.

The Tribunal found that the visa applicant met the requirements of subclauses 102.211(2)(a), (b)(i), (b)(ii), and (c). It was satisfied that the applicant was under 18 at the time of application, that she was adopted overseas by an Australian citizen who had been residing overseas for more than 12 months, and that this residence was not contrived. However, the Tribunal noted that the crucial element of whether the sponsor had "lawfully acquired full and permanent parental rights by the adoption" under subclause 102.211(2)(d) required further consideration, particularly in light of Regulation 1.04 which defines adoption arrangements.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the criteria under subclause 102.211(2) of Schedule 2 to the Regulations, with the understanding that the assessment of subclause 102.211(2)(d) would be undertaken during the reconsideration process.