LAMNANSAI (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, where the applicant, an adopted son, sought to have the 12-month overseas residence requirement waived for his adoptive parent. The dispute centred on whether "compelling or compassionate circumstances" existed to justify this waiver. The decision was made by Senior Member Michael Cooke of the Tribunal.

The core legal issue before the Tribunal was to determine if compelling or compassionate reasons were present that would allow for a waiver of the 12-month overseas residence requirement for the adoptive parent. This requirement is a condition for granting the Child (Residence) visa when the adoptive parent has not resided overseas for the requisite period. The Tribunal also considered whether the applicant met the criteria for being a dependent child and the specific adoption requirements under the Migration Regulations 1994.

The Tribunal found that the applicant, who was under 18 at the time of adoption, met the criteria for being a dependent child and satisfied certain other regulatory requirements for the visa. The adoptive parent, a business owner, explained that while she had fully adopted the applicant under Thai law, her financial obligations to her family in Australia and Thailand made it impossible to remain in Thailand for the full 12 months. She expressed that her actions were due to ignorance of the specific protocol regarding the Adoption Convention. The Tribunal was impressed by her forthright and credible evidence, noting her deep concern for the applicant's welfare and the dire circumstances he faced in Thailand. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.