Perkins (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 102 (Adoption) visa for a child adopted in Hungary. The review applicant, an Australian citizen, and his wife, Mrs Perkins, an Australian citizen born in Hungary, adopted the visa applicant in Hungary. The visa application was lodged after the delegate determined that the requirement for at least one adoptive parent to have resided overseas for 12 months prior to the application was not met. The Tribunal was asked to determine whether the decision under review should be affirmed.

The primary legal issues before the Tribunal were whether the visa applicant was under 18, whether he was adopted overseas by an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, whether that adoptive parent had been residing overseas for more than 12 months at the time of the application. Further issues included whether the Minister was satisfied that any overseas residence was not contrived to circumvent Australian entry requirements for adopted children, and whether the adoptive parent had lawfully acquired full and permanent parental rights.

The Tribunal considered the evidence provided by the review applicant and Mrs Perkins, which detailed their circumstances, including their intention to adopt in Hungary, their extended stay in Europe due to Mrs Perkins' PhD commitments and research, and their eventual return to Australia. The Tribunal noted that the visa criteria required the adoptive parent to have been residing overseas for more than 12 months at the time of the application. The evidence indicated that the adoptive parents had been in Australia for a significant period prior to the visa application, and their overseas travel was primarily for study and personal matters, not for the purpose of circumventing adoption entry requirements. The Tribunal concluded that the requirement of residing overseas for more than 12 months had not been met.

The Tribunal affirmed the delegate's decision to refuse the visa.