Savane (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision to refuse a Partner (Provisional) (Class UF) visa, Subclass 309. The primary visa applicant, Ms Sallay Sammeh Yanka Savane, sought to have the child applicants recognised as members of her family unit for the purposes of the visa application.

The central legal issue before the Tribunal was whether the child applicants qualified as members of the family unit of the primary applicant under regulation 1.12 of the Migration Regulations 1994, specifically whether they were "children" as defined by section 5CA of the Migration Act 1958 and regulation 1.04 of the Migration Regulations. This involved determining if the children were adopted within the meaning of the Act, considering both formal adoption orders and "other arrangements" that might be considered in the nature of adoption under customary law.

The Tribunal noted that the initial decision had been made on the basis that no formal adoption orders were in place. However, the Tribunal found that the delegate had failed to consider whether the circumstances met the criteria for "other arrangements" in the nature of adoption, as outlined in regulation 1.04(2). This included whether the arrangements were made in accordance with usual practice or recognised custom, whether the child-parent relationship was significantly closer than with any other person, and whether formal adoption was unavailable or not reasonably practicable, without being contrived to circumvent migration requirements. The Tribunal accepted that no formal adoption orders existed but indicated that further consideration of customary adoption was warranted.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, directing that the first and second named visa applicants met specific criteria for a Subclass 309 visa, implying that the assessment of their status as members of the family unit, potentially through customary adoption, was to be undertaken.