Laohasakprasit (Migration)

This matter concerned a review of a decision by the Department of Home Affairs not to grant a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption), to a Thai national. The visa applicant, aged 15 at the time of application, was seeking to migrate to Australia to live with his adoptive mother, an Australian citizen. The adoptive mother had sponsored the application, asserting she had adopted the applicant under formal private arrangements in accordance with Thai law.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a Subclass 102 visa, specifically the requirement under clause 102.211(2)(b)(ii) that at least one of the adoptive parents must have been residing offshore for more than 12 months prior to the lodgement of the visa application. The Department had raised concerns that the adoptive mother had not met this offshore residence requirement.

The Tribunal considered the evidence, including the adoptive mother's explanation that she was unable to spend the required 12 months in Thailand due to business commitments in Australia, where she had established a business and maintained a settled abode. The Tribunal found that Australia was and had been the adoptive mother's place of residence within the relevant legal meaning, citing her business, long-term relationship, property ownership, and her own assertion that Australia was her home. Consequently, the Tribunal concluded that the adoptive mother had not resided offshore for the requisite 12 months.

As a result of this finding, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. The Tribunal noted that the applicant held a valid student visa and advised him to seek professional advice regarding potential future visa pathways.