Sewak (Migration)

This matter concerned an application for a Child (Class AH) visa, Subclass 102 (Adoption), brought before the Administrative Appeals Tribunal. The applicant, who was under 18 years of age, sought to be adopted by sponsors residing overseas. The core dispute revolved around whether the sponsors met the residency requirements stipulated by the relevant migration regulations at the time of the visa application.

The Tribunal was required to determine if the visa applicant met the criteria set out in clause 102.211(2) of the Migration Regulations. Specifically, the Tribunal had to ascertain whether the adoptive parent had been residing overseas for more than 12 months at the time the application was lodged, as required by clause 102.211(2)(b)(ii). This clause is applicable when the adoption has not been approved by an Australian competent authority or made in accordance with the Adoption Convention in a signatory country.

The Tribunal's reasoning focused on the documentary evidence of the sponsors' movement records, which indicated they had not resided overseas for the requisite 12-month period prior to the application. Both the applicant and the sponsors confirmed this fact. The Tribunal noted that this requirement was not waivable and, therefore, clause 102.211(2)(b)(ii) was not satisfied. As other relevant clauses, such as those pertaining to Australian-approved adoptions or adoptions in Adoption Convention countries, were also not met, the Tribunal concluded that the applicant did not satisfy the criteria for the visa.

Consequently, the Administrative Appeals Tribunal affirmed the decision of the Department to refuse the grant of the Child (Class AH) visa. The Tribunal found that the applicant did not meet the criteria for any visa within the Child (Class AH) category.