Song (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption), made by Destiny Song Zi Ying, a child born in Malaysia. The applicants for the visa were the adoptive parents, Mr Nicholas Kiong Song, an Australian citizen, and Ms Chin Chu Jee, a permanent resident of Australia. The dispute centred on whether the adoptive parents met the residency requirements for the visa, specifically concerning their overseas residence for more than 12 months prior to the application.

The primary legal issue before the Tribunal was whether the applicant met the criteria under subclause 102.211 of Schedule 2 to the Migration Regulations 1994. This subclause requires that at least one of the adoptive parents must have been an Australian citizen or permanent resident for at least 12 months immediately before the application was lodged, and that the child must have been adopted in accordance with the law of a foreign country. A further consideration was whether the adoptive parents' residence overseas was contrived to circumvent the visa requirements.

The Tribunal found that while Mr Song met the residency requirement, Ms Jee did not, as she had predominantly lived and conducted her business in Malaysia. However, the Tribunal was satisfied that Ms Jee's continued residence in Malaysia was not contrived to circumvent the visa requirements. She had established a business supplying products and services for gifted children, with an agreement to continue working in it for at least five years, and her intention was to move to Australia thereafter. The Tribunal also noted that the adoption was a private, customary arrangement made in Malaysia due to the parents' age and fertility issues, which precluded adoption in Australia.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets the criteria under subclause 102.211 of Schedule 2 to the Regulations.