McMillan (Migration)

This matter concerned an appeal by a visa applicant, represented by their sponsor, against a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption). The applicant's mother was deceased and their father was unknown. The sponsor, who was not related to the applicant, had been appointed the applicant's legal guardian and granted custody, care, and control by the Kenyan authorities. The core of the dispute revolved around whether the circumstances of the guardianship and the applicant's subsequent care met the requirements for adoption under Australian migration law, particularly in light of Kenyan adoption legislation and a moratorium on adoptions by foreigners. The case was heard by Kira Raif.

The primary legal issue before the court was whether the visa applicant had complied with the laws relating to adoption of Kenya, the country in which the child was normally resident, as required by clause 102.213 of the Migration Regulations. This involved determining whether the legal guardianship granted to the sponsor, in circumstances where a formal adoption was not possible due to a moratorium on adoptions by foreigners in Kenya, constituted a customary adoption or a relationship comparable to full and permanent parental rights under Australian law. The court also had to consider the sponsor's residency status and the practical implications of the Kenyan moratorium on the ability to finalise a formal adoption.

The court reasoned that while the Kenyan Children's Court had recognised the relationship between the applicant and the sponsor, granting the sponsor legal guardianship, custody, care, and control, and acknowledging the sponsor's provision of full parental rights and responsibilities, certain aspects of the Kenyan court orders did not confer sole custody or permanent removal rights. Specifically, the 2013 ruling did not grant sole custody, and subsequent court orders were required for the applicant to travel outside Kenya, indicating the 2013 ruling did not permit permanent removal. The court noted that although the Kenyan Children's Act 2022 now allows for adoption by foreigners, a moratorium introduced in 2014 remained in place, rendering formal adoptions practically impossible. Despite these technicalities, the delegate had accepted that the sponsor had provided significant support and that their relationship was very close, comparable to full and permanent parental rights under the Australian Family Law Act and satisfying the requirements for customary adoption under the Migration Regulations. However, the delegate ultimately affirmed the decision to refuse the visa, noting that there was no provision for a waiver and referring the matter for ministerial consideration.