Minniecon (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by William Minniecon, who was adopted in Vanuatu. The adoptive parent, Sonia Minniecon, is an Australian citizen. The dispute before the Tribunal was whether the adoptive parent had been residing overseas for more than 12 months at the time of the adoption, a requirement under clause 802.213(5)(b)(i) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 802 visa, specifically focusing on the provisions relating to adoptions in overseas countries. This involved assessing whether the adoptive parent was an Australian citizen at the time of adoption, whether the adoption conferred full and permanent parental rights, and crucially, whether the 12-month overseas residency requirement should be waived due to compelling or compassionate circumstances, or if the overseas residence was not contrived to circumvent Australian immigration requirements.

The Tribunal found that the applicant was adopted in an overseas country and that Sonia Minniecon was an Australian citizen at the time of the adoption. It was also satisfied that Sonia and her partner had established a non-profit organisation in Vanuatu and Australia, spending approximately 75% of their time in Australia and 25% in Vanuatu. The Tribunal accepted their explanation that they did not initially intend to adopt William but were approached by family and decided to do so. Based on this, the Tribunal was satisfied that Sonia's overseas residence was not contrived to circumvent immigration requirements and that compelling or compassionate circumstances existed such that the 12-month overseas residency requirement should not apply.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under clauses 802.213(5) and 802.215 of Schedule 2 to the Regulations.