Chen (Migration)

The Administrative Appeals Tribunal considered a decision concerning a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption). The review applicant sought to adopt a child residing overseas. The primary dispute revolved around whether the adoption complied with the relevant migration law criteria, particularly concerning the residency status of the adopting parent and the validity of the adoption under Chinese law.

The Tribunal was required to determine two key legal issues. Firstly, whether the adoption of the visa applicant complied with the requirements for an expatriate (private overseas) adoption under migration law, specifically concerning the adopting parent's residency status and the lawful acquisition of parental rights. Secondly, the Tribunal had to assess whether the adoption process adhered to the adoption laws of China, given the circumstances of the adopting parents' citizenship at the time of the adoption.

The Tribunal's reasoning focused on the conditions for an expatriate adoption, which require the adopting parent to have been residing overseas for more than 12 months at the time of the visa application and to have lawfully acquired full parental rights. A significant issue arose because the review applicant's former wife, who was a Chinese citizen at the time of the adoption in 2007, later acquired Australian citizenship in 2009, terminating her Chinese citizenship. This occurred before the visa applicant was born and before the adoption order was finalised. The Tribunal noted that the adoption process in China was conducted on the basis that both adopting parents were Chinese citizens. Despite these concerns regarding compliance with Chinese law and the implications of the former wife's subsequent Australian citizenship, the Tribunal concluded that the circumstances of the visa applicant would justify Ministerial intervention.

Ultimately, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. However, it also indicated that the circumstances warranted referral for Ministerial intervention, suggesting that the Minister might consider granting the visa on other grounds.