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 a relationship through adoption. The core dispute revolved around whether the applicant met the criteria for a "dependent child" under the Migration Regulations, particularly in light of an adoption that was not made in accordance with Australian law and did not confer permanent parental rights.

The legal issues before the Tribunal were whether the applicant qualified as a dependent child under clause 802.212 of the Migration Regulations. This required determining if the applicant was a child or step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen, and whether they met the age and dependency requirements. Crucially, the Tribunal had to consider the definition of "child of a person" under section 5CA of the Migration Act, which distinguishes between children under the Family Law Act and adopted children under the Migration Act, and addresses circumstances where an adoption is not recognised under Australian law.

The Tribunal reasoned that while the applicant claimed an adoption, this adoption was not made in accordance with Australian law and did not grant permanent parental rights. Consequently, the applicant could not satisfy the criteria for being a child under section 5CA(1)(a) of the Act due to the exclusion for adopted children under the Family Law Act. The Tribunal then assessed the applicant against the criteria for adopted children under section 5CA(1)(b) and, in the alternative, against the criteria for step-children. Despite affirming the decision not to grant the visa based on the formal criteria, the Tribunal found strong compassionate circumstances that, if not recognised, would result in serious, ongoing, and irreversible harm and continuing hardship to the applicant's family unit.

Therefore, the Tribunal referred the matter to the Minister for his determination under section 351 of the Migration Act, while affirming the decision not to grant the Child (Residence) visa.