Kinikay (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption), made by a child sponsored by an Australian citizen. The dispute centred on whether the sponsor had resided overseas for the requisite 12 months prior to the application, a key criterion for this visa subclass. The applicant, born in Papua New Guinea, was the subject of a customary adoption by the sponsor, an Australian citizen.

The primary legal issue before the Tribunal was to determine if the sponsor met the requirement under subclause 102.211(2)(b)(ii) of the Migration Regulations 1994, which mandates that the adopting parent must have been residing overseas for more than 12 months at the time of the visa application. The Tribunal also considered whether the applicant met the criteria for other visa subclasses, such as the Orphan Relative (Subclass 117) and Child visa (Subclass 101), and whether Ministerial intervention was warranted.

The Tribunal reasoned that the applicant's claim for a Subclass 102 visa relied on a private, customary adoption arrangement. It examined the evidence of the sponsor's overseas residence, including periods spent in Papua New Guinea on official naval deployments. Despite considering this evidence, the Tribunal found that the total periods of overseas residence, even when aggregated, fell short of the required 12 months. The Tribunal noted that while the legislation does not explicitly require continuous residence overseas, the evidence presented did not support the sponsor having resided overseas for the necessary duration under any interpretation of the requirement.

Consequently, the Tribunal affirmed the decision not to grant the visa. The Tribunal referred the matter to the Department for consideration of Ministerial intervention, acknowledging the sponsor's request for such consideration if the provided information was insufficient for a favourable decision.