Mishra (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by two children. The decision under review was made by the Administrative Appeals Tribunal, which affirmed the delegate's decision to refuse the visa. The applicants sought to establish that they were the dependent children of Mr. Mishra, the sponsor.

The primary legal issue before the Tribunal was whether the children met the definition of a "child of a person" as defined in section 5CA of the Migration Act 1958 (Cth). This involved determining whether the children were considered the children of Mr. Mishra for the purposes of the Act, particularly in light of their birth via surrogacy using donor sperm and eggs, and the existence of a Guardianship Order from a New Delhi Family Court. The Tribunal also considered the definition of "dependent child" and "step-child" under the Migration Regulations 1994.

The Tribunal noted that while the children were born via surrogacy in India, and Mr. and Ms. Mishra were listed as parents on their birth certificates, the embryos were not biologically or genetically related to either of them. Crucially, the Tribunal found that the definition of "child of a person" in section 5CA(1)(a) refers to a child within the meaning of the Family Law Act 1975 (Cth). The Tribunal concluded that the children, not being biologically or genetically related to Mr. Mishra, did not fall within the definition of a child under the Family Law Act. Furthermore, the Tribunal found that the Guardianship Order from India, while granting custody and guardianship, did not establish the children as "children of a person" for the purposes of the Migration Act in the absence of a biological or adoptive relationship as contemplated by section 5CA. Consequently, the Tribunal found that the criteria for the grant of a Subclass 802 visa were not met.

The Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.