Kamara (Migration)

This matter concerned applications for Child (Migrant) (Class AH) visas, Subclass 101, made by citizens of Sierra Leone, who claimed to be the adoptive children of the review applicant. The review applicant, a permanent resident of Australia, had lodged sponsorship forms for each child. The delegate had previously found no evidence of formal adoption or that the sponsor resided out of Australia for more than 12 months at the time of application. The review applicant sought review of these decisions, submitting a court order from the High Court of Sierra Leone dated 2 August 2013 as evidence of adoption.

The primary legal issues before the Tribunal were whether the visa applicants had been adopted in accordance with the Migration Regulations 1994, and whether the Tribunal had jurisdiction to review the applications as a combined or single application. The review applicant conceded that the applicants did not meet the criteria under cl.102.211 of Schedule 2 of the Regulations because, at the time of adoption, she was neither an Australian citizen, a holder of a permanent visa, nor an eligible New Zealand citizen. Consequently, the applicants' eligibility was to be assessed against the alternative Child (Migrant) (Class AH) visa criteria for Subclass 101.

The Tribunal considered Regulation 1.04, which defines adoption, and found that the evidence, including the Sierra Leone court order and the review applicant's credible oral evidence, established that the applicants had been adopted in accordance with the law of another country, satisfying the requirements of Regulation 1.04(1)(b). The Tribunal also determined that it had jurisdiction to review the applications as a combined application. Given these findings, the Tribunal remitted the applications to the Minister for reconsideration, directing that the visa applicants met the criteria under cl.101.211 and cl.101.221(1) of Schedule 2 to the Regulations.