Kabeto (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), by a visa applicant sponsored by their aunt. The central dispute concerned whether the visa applicant qualified as an "adopted child" or an "orphan relative" under the relevant migration regulations, given that the sponsorship was based on a customary adoption rather than a formal legal adoption.

The Tribunal was required to determine two primary legal issues. Firstly, whether the customary adoption, whereby the sponsor took responsibility for raising her brother's children in accordance with recognised custom, met the definition of adoption for the purposes of the visa subclass, particularly in circumstances where formal adoption was available under Ethiopian law. Secondly, the Tribunal had to assess whether the visa applicant qualified as an "orphan relative" and whether the provided death certificates for the applicant's parents were genuine.

In its reasoning, the Tribunal found that while the sponsor had undertaken a customary adoption, the regulations required that if formal adoption was reasonably practicable, it should have been pursued. The Tribunal noted that formal adoption was available under Ethiopian law and that the cultural and financial barriers, along with the custom of not pursuing formal adoption, did not sufficiently demonstrate that formal adoption was not reasonably practicable. Furthermore, the Tribunal concluded that the death certificates for the visa applicant's parents were not genuine, thus precluding the applicant from meeting the criteria for an orphan relative. Consequently, the Tribunal affirmed the decision not to grant the visa.