Kalu (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Residence) (Class BT) visa, subclass 802. The applicant claimed to be the dependent child of an eligible person, specifically asserting an adoption. The core dispute revolved around whether the applicant met the criteria for a "dependent child" under the Migration Regulations, particularly in light of the nature of the claimed adoption and its compliance with Australian law.

The Tribunal was required to determine if the applicant satisfied clause 802.212 of the Migration Regulations, which defines a dependent child. This involved interpreting the definition of "dependent child" in regulation 1.03 and the definition of "child of a person" in section 5CA of the Migration Act 1958 (Cth). Specifically, the Tribunal had to consider whether the applicant qualified as a child under section 5CA(1)(a) or (b), and if an adoption, not made in accordance with Australian law, could still satisfy the criteria, or if the applicant should be assessed as a step-child.

The Tribunal reasoned that if the applicant was an adopted child within the meaning of the Family Law Act 1975, they would be excluded from being considered a child under section 5CA(1)(a). Therefore, the assessment proceeded on the basis of section 5CA(1)(b), which pertains to adopted children within the meaning of the Migration Act. While the Tribunal ultimately affirmed the decision not to grant the visa based on the applicant not meeting the formal requirements, it recognised strong compassionate circumstances. These circumstances, if not acknowledged, would lead to serious, ongoing, and irreversible harm and continuing hardship to the applicant's family unit.

Consequently, the Tribunal decided to refer the matter to the Minister for his determination under section 351 of the Migration Act. Despite this referral, the Tribunal affirmed the original decision not to grant the Child (Residence) (Class BT) visa.