Rakuro (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Miss Eleni Heilala Ofa Rakuro. The applicant, born in 1995, applied for the visa in May 2015, claiming to be a dependent child of her sponsor, her biological mother. The Minister's delegate refused the application, and the applicant appealed this decision to the Tribunal.

The primary legal issues before the Tribunal were whether the applicant could be considered the child of her biological mother for migration purposes, given a prior formal adoption by her aunt, and whether she met the criteria for being a "dependent child" under the Migration Regulations. Specifically, the Tribunal had to determine if the applicant qualified under Regulation 1.04(1)(c) concerning arrangements in the nature of adoption, and if she was "wholly or substantially reliant" on her sponsor to meet her basic needs as defined in Regulation 1.05A.

The Tribunal reasoned that while a formal adoption in Fiji in 1997 meant the applicant was legally considered the child of her aunt and not her biological parents for migration purposes under Regulation 1.14A(2), subsequent arrangements in 2012/2013 could be considered in the nature of adoption under Regulation 1.04(1)(c). The Tribunal was satisfied that these arrangements met the criteria of Regulation 1.04(2), including being in accordance with recognised custom, establishing a significantly closer child-parent relationship with the sponsor, and that formal adoption was not reasonably practicable due to circumstances in Fiji following a coup. Furthermore, the Tribunal found that the arrangements were not contrived to circumvent Australian migration requirements. The Tribunal also found that the applicant met the criteria for being a dependent child under Regulation 1.05A, being substantially reliant on her biological mother for basic needs.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 802.212 of Schedule 2 to the Migration Regulations.