Delos Reyes (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child who had been adopted overseas. The applicant's adoptive parents were Australian permanent residents who had migrated to Australia before the legal adoption process was finalised in the Philippines. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in relation to the overseas residence requirement for the adoptive parents.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 802.213 of the Migration Regulations 1994, specifically concerning an overseas adoption where the adoptive parents were not Australian citizens or permanent residents at the time of the adoption. This involved assessing whether the adoptive parents met the conditions outlined in subclauses 802.213(2) through (5), particularly subclause (5) which addresses situations where the adoptive parent was an Australian citizen or permanent resident at the time of adoption but had been residing overseas for more than 12 months, or where compelling or compassionate circumstances justified an exception.

The Tribunal found that the applicant was under 18 when the adoption took place and that the adoption was finalised in the Philippines on 27 June 2017, with effect from 20 June 2014. The adoptive parents had migrated to Australia in November 2011, prior to the legal finalisation of the adoption. The Tribunal accepted that the adoptive parents had initiated the adoption process in 2014 due to cost considerations and that they had not returned to the Philippines in the 12 months prior to the adoption order due to work commitments and advice from their lawyer. The Tribunal was satisfied that the adoptive parents had lawfully acquired full and permanent parental rights.

Given these findings, the Tribunal remitted the application to the Minister for reconsideration, directing that the applicant met the criteria under clause 802.213 of Schedule 2 to the Regulations. This indicated that the Tribunal considered the circumstances to fall within the ambit of subclause 802.213(5)(b)(ii), allowing for an exception to the 12-month overseas residence requirement due to compelling or compassionate circumstances.