Asamoah (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered a decision to refuse a Child (Migrant) (Class AH) visa (Subclass 101). The review applicant, Mr Kwame Asamoah, an Australian permanent resident, sought to have his adopted son, Mr Kelvin Annor Mensah, granted the visa. The visa applicant, aged 24, is a citizen of Ghana. The application for the visa was lodged on the basis that Mr Mensah was the adopted child of Mr Asamoah.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a Subclass 101 visa, specifically concerning the nature of the adoption and the status of the review applicant at the time of adoption. The relevant regulations required that the applicant be adopted overseas by a person who was not an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of adoption, but who later became one of these. Furthermore, the adoption arrangements needed to be formal or, if informal, recognised as being in the nature of adoption under specific criteria, including the availability or practicability of formal adoption and that the arrangements were not contrived to circumvent migration requirements.

The Tribunal reasoned that while the review applicant had become an Australian permanent resident after the adoption, and the adoption was finalised under Ghanaian customary law, the specific requirements of the regulations regarding "other arrangements entered into outside Australia that... are taken to be in the nature of adoption" were not fully met. Although the review applicant assumed a parental role and the relationship was significantly closer, the Tribunal found that formal adoption was available in Ghana at the time of the arrangements. Consequently, the criteria under subregulation (2) of regulation 1.04, which allows for informal arrangements to be considered in the nature of adoption, were not satisfied.

The Tribunal affirmed the delegate's decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the criteria for the visa were not met. No claims were advanced in respect of other visa subclasses within Class AH.