Nguyen (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa by a Vietnamese national, born in 2006. The review applicant, the visa applicant's sponsor, was a Vietnamese national who later became an Australian permanent resident. The application was initially made on the basis of adoption (Subclass 102), but the sponsor was not an Australian citizen or permanent resident at the time of the adoption. The Administrative Appeals Tribunal was required to review the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was whether the visa applicant's application for a Class AH visa should have been assessed against all subclasses within that class, namely Subclass 101 (Child), Subclass 102 (Adoption), and Subclass 117 (Orphan Relative), even though the Subclass 102 criteria were not met. A further issue was whether the visa applicant met the criteria for Subclass 101, specifically concerning the sponsor's parental role.

The Tribunal found that the visa applicant had made a valid application for a Class AH visa, which encompasses multiple subclasses. Therefore, the applicant was entitled to be assessed against the criteria for all three subclasses. The Tribunal noted that the delegate had only assessed the application under Subclass 102 and had not considered the other subclasses. The Tribunal was satisfied that the visa applicant met the Schedule 1 requirements for all three subclasses. Crucially, the Tribunal found that the visa applicant met the criteria for Subclass 101, including the requirement that the sponsor had a parental role in relation to the child.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria for a Subclass 101 (Child) visa.