Huynh (Migration)

This matter concerned an appeal by a sponsor against a decision to refuse an Adoption (Subclass 102) visa for their niece. The applicant, who was a minor at the time of application, had since turned 20 years old. The sponsor argued that the delays in processing were attributable to the Department and the Tribunal, and that the age requirement should be applied with flexibility. The sponsor also expressed a desire for the niece to reside in Australia for companionship and support, despite the applicant now being an adult and no longer in need of parental care.

The primary legal issue before the Tribunal was whether the applicant met the criteria for an Adoption (Subclass 102) visa, specifically cl.102.211 and cl.102.221 of the Migration Regulations 1994. The Tribunal was required to determine if the applicant satisfied the requirement of having not turned 18 years of age at the time of the decision, as stipulated in various subclauses of cl.102.211, which is a prerequisite for meeting the ongoing criteria under cl.102.221.

The Tribunal reasoned that cl.102.211, which outlines the criteria for an Adoption (Subclass 102) visa, mandates that the applicant must not have turned 18 years of age at the time of application, and in some instances, at the time of decision. As the applicant was 20 years old at the time of the decision, she did not meet this fundamental age requirement under cl.102.211(2)(a), (3)(a), (4)(a), or (5)(a). Consequently, the applicant failed to satisfy cl.102.221, which requires the applicant to continue to satisfy the criteria in cl.102.211. The Tribunal found no evidence to suggest the applicant met the criteria for any other subclass of a Class AH (Child (Migrant)) visa.

The Tribunal affirmed the decision not to grant the Adoption (Subclass 102) visa.