McMillan (Migration)

This matter concerned an appeal by a visa applicant, represented by their sponsor, against a decision of the Administrative Appeals Tribunal. The dispute centred on the eligibility of the child for a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption), where the child's mother was deceased, the father unknown, and the sponsor had been appointed legal guardian and granted custody, care, and control of the child by Kenyan authorities. The court was asked to review the Tribunal's decision affirming the refusal of the visa.

The primary legal issue before the court was whether the visa applicant met the requirements of Clause 102.213 of the Migration Regulations, which mandates compliance with the adoption laws of the child's country of usual residence. Specifically, the court had to determine if the Kenyan legal guardianship and custody granted to the sponsor constituted a customary adoption or a relationship equivalent to adoption under Australian law, despite the absence of a formal adoption order and the existence of a moratorium on foreign adoptions in Kenya. The court also considered whether the sponsor's circumstances, including her residence history and the nature of her relationship with the child, satisfied the underlying intent of the visa subclass.

The court reasoned that while the Kenyan Children's Court had recognised the adoptive relationship and granted the sponsor full parental rights and responsibilities, the guardianship order did not confer sole custody, nor did it explicitly permit the permanent removal of the child from Kenya. The court noted that the Kenyan moratorium on adoptions by foreigners, which commenced in 2014 and continued under subsequent legislation, rendered formal adoption practically impossible. Despite these technicalities, the delegate had accepted that the sponsor had complied with Kenyan laws regarding adoption to the extent possible and that the relationship was akin to a full and permanent parental one under Australian law. However, the delegate also highlighted that the guardianship order did not grant sole custody and that court orders were required for the child to travel outside Kenya, indicating limitations on the sponsor's parental rights as defined by Kenyan law.

Ultimately, the court affirmed the decision under review. While acknowledging the significant relationship between the applicant and sponsor and the practical difficulties in formal adoption due to Kenyan moratoriums, the court found that the requirements of Clause 102.213 were not met. The lack of sole custody and the limitations on permanent removal from Kenya meant that the legal guardianship did not equate to a full and permanent parental relationship as contemplated by the visa subclass. The matter was referred for ministerial consideration due to the hardship and delays experienced.