Gordon (Migration)

This matter concerned an application for review of a decision not to grant a Child (Residence) (Class BT) visa, subclass 802. The applicant was adopted by an Australian citizen. The core of the dispute revolved around whether the adoption met the specific requirements of subclause 802.213 of the Migration Regulations 1994, particularly concerning the circumstances of the adoption and the adoptive parent's residency. The decision was made by a Member of the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria set out in subclause 802.213 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the adoption was in accordance with the Hague Adoption Convention and had an adoption compliance certificate issued, or alternatively, whether the adoptive parent had been residing overseas for more than 12 months prior to the adoption, or if compelling or compassionate circumstances justified an exception to this requirement. The Tribunal also considered whether a competent authority in Australia had approved the adoptive parent as suitable prior to the adoption.

The Tribunal found that the applicant met the initial requirements of subclause 802.213(1), being under 18 at the time of adoption and adopted by an Australian citizen. However, the adoption papers did not reflect the requirements of the Hague Adoption Convention, and no adoption compliance certificate had been issued, meaning subclause 802.213(2) was not met. Subclause 802.213(3) was also not met as the adoptive parents were already Australian citizens at the time of adoption. The evidence did not establish that a competent authority in Australia had approved the adoptive parent prior to the adoption, nor did it demonstrate that the adoptive parent had resided overseas for more than 12 months, or that compelling or compassionate circumstances existed to waive this requirement. Consequently, the applicant failed to meet the requirements of clause 802.213.

The Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.