Rakuro (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, by Mr Josefa Rakuko. The applicant, born on 28 February 1997, applied for the visa on 18 May 2015, at which time he was 18 years old. The application was initially refused by the Minister’s delegate on 27 May 2015. Mr Rakuko appealed this refusal to the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT), which conducted a hearing on 1 February 2016. The applicant, his biological mother (the sponsor), and his step-father gave oral evidence.

The primary legal issue before the Tribunal was whether the applicant was a "child" of his sponsor for the purposes of Subclass 802 visa criteria, specifically clause 802.212 of Schedule 2 to the *Migration Regulations 1994* (Cth). This involved determining whether the applicant's prior adoption in Fiji in 1997, under which his biological parents ceased to be recognised as his legal parents and his aunt became his legal parent, precluded him from being considered the child of his biological mother. The Tribunal also had to consider whether subsequent arrangements in 2012/2013, where the sponsor re-established care and control and assumed a parental role under arrangements in the nature of adoption, met the requirements of regulation 1.04(1)(c) and regulation 1.04(2). Finally, the Tribunal needed to assess whether the applicant met the definition of "dependent" as prescribed by regulation 1.05A.

The Tribunal reasoned that while the applicant was adopted under formal arrangements in Fiji in 1997, which under regulation 1.14A(2) meant he was taken not to be the child of any other person, subsequent arrangements in 2012/2013 could establish him as the child of his sponsor under regulation 1.04(1)(c). The Tribunal was satisfied that these arrangements met the criteria in regulation 1.04(2), including being in accordance with the usual practice and recognised custom of the cultures involved, creating a significantly closer child-parent relationship than with any other person, and that formal adoption of the kind referred to in regulation 1.04(1)(b) was not reasonably practicable due to the circumstances surrounding the attempted annulment of the 1997 adoption order in Fiji. The Tribunal was also satisfied that these arrangements were not contrived to circumvent Australian migration requirements. Furthermore, the Tribunal found that the applicant met the criteria for dependence under regulation 1.05A, being wholly or substantially reliant on his sponsor for a substantial period to meet his basic needs, and that he was not engaged to be married nor had a spouse or de facto partner.

Consequently, the Tribunal was satisfied that the applicant met clause 802.212 of Schedule 2 to the *Migration Regulations*. The Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria specified in clause 802.212.