BASNET (Migration)

The Administrative Appeals Tribunal considered an application for a Child visa (Subclass 101) made by an applicant sponsored by Ms. Basnet. The central dispute concerned whether the applicant had been legally adopted by Ms. Basnet, a requirement for the visa. The applicant's representative argued that the applicant met all the Schedule 2 criteria for the visa, including those relating to adoption, sponsorship, age, and dependency.

The legal issues before the Tribunal were whether the applicant satisfied the definition of adoption as set out in regulation 1.04 of the Migration Regulations 1994, and consequently, whether the applicant met the specific criteria for a Subclass 101 Child visa, including clauses 101.211, 101.212, 101.213, and 101.221. The Tribunal was required to assess the evidence presented to determine if the adoption arrangements, made in accordance with Nepalese law, met the regulatory definition of adoption, particularly subregulation 1.04(1)(b) or 1.04(1)(c) and 1.04(2).

The Tribunal's reasoning focused on the evidence of a customary adoption by a relative in Nepal, supported by a deed of adoption from a Nepalese land revenue office, statements from the applicant and sponsor, and statutory declarations from the sponsor's husband, the applicant's biological father, and other witnesses. The Tribunal found that the evidence sufficiently demonstrated that the applicant met the criteria under clauses 101.211, 101.212, 101.213, and 101.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration by the Minister, with a direction that the visa applicant met the specified criteria for a Subclass 101 (Child) visa.