Kaur (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, by a child who was the niece of the proposed adoptive parents. The applicant, born in the United States, was the biological child of Sukhbir Singh and Navjot Kaur. Consent orders were made by the Family Court of Australia on 20 August 2018, granting Manjinder Kaur and Satnam Singh equal shared parental responsibility for the applicant, with the applicant to reside with them. Subsequently, on 21 October 2019, the Supreme Court of New South Wales made an order for the applicant's adoption in favour of Manjinder Kaur and Satnam Singh. A New South Wales birth certificate was issued on 8 November 2019, listing Manjinder Kaur and Satnam Singh as the applicant's parents. The decision under review affirmed the Tribunal's decision not to grant the visa.

The primary legal issue before the court was whether the applicant met the criteria for being a "dependent child" at the time of the visa application, specifically concerning the definition of "child" which includes an adopted child. The court was required to determine if the adoption, as defined by the Migration Regulations, had occurred prior to the visa application being lodged. The definition of "dependent child" in regulation 1.03 requires the child to be a child or step-child of the sponsor, and the definition of "child" in section 5CA of the Act includes an adopted child. Regulation 1.04 outlines the requirements for adoption, including that the adopter must have assumed a parental role before the adoptee attained 18 years of age, and this role must have been assumed under specific legal arrangements.

The court reasoned that for the applicant to be considered an adopted child at the time of the application, the adoption must have been legally recognised under the relevant provisions of the Migration Regulations. While consent orders for parental responsibility were made by the Family Court prior to the application, and an adoption order was made by the Supreme Court of New South Wales after the application, the critical factor was whether the legal requirements for adoption, as defined for migration purposes, were met at the time the visa application was lodged. The court found that the formal adoption order, which legally established the parental relationship for the purposes of the Act, was made after the application date. Therefore, the applicant was not considered an adopted child at the time of the application, and consequently, the criteria for the grant of a Subclass 802 visa were not met.

The Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.