Qiao (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, where the applicant was the dependent child of her sponsoring parent. The central dispute revolved around whether the applicant met the criteria for a "dependent child" under the relevant regulations, particularly in light of her age at the time of application and the complexities surrounding her adoption under Chinese law.

The court was required to determine if the applicant qualified as a "dependent child" as defined by regulation 1.03 of the Migration Regulations. This involved assessing whether she was under 25 years of age, not engaged or partnered, and, given she was over 18 at the time of application, whether she was reliant on her sponsor for financial support to meet certain basic needs. Crucially, the court also had to consider the validity and effect of the applicant's adoption under Chinese law, specifically whether the formal adoption granted on 24 April 2014 satisfied the requirements of the Chinese Adoption Law and the visa application provisions.

The Tribunal found that the applicant was over 18 at the time of application. It noted that the applicant had been informally adopted as a foundling and had faced significant difficulties in formalising this adoption under Chinese authorities due to population policies and her existing children. Despite these challenges, the applicant had consistently cared for the child and incurred additional expenses due to the child's unregistered status. The Tribunal considered the hukou document, or Household Register, maintained by the PRC police, as the primary source for personal identity status in China and the sole legal basis for Chinese family identification. The Tribunal concluded that the applicant's eventual inclusion in the family hukou as an adopted or stepdaughter on 24 April 2014, following extensive efforts, was a significant step in formally recognising her status.

The Tribunal concluded that the matter should be remitted for reconsideration, indicating that the delegate's decision had not adequately addressed the applicant's circumstances and the legal effect of her adoption as evidenced by the hukou registration.