Syed (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, subclass 102 (Adoption), made by Miss Arusha Fatima Syeda. The visa applicant was born in India in 2013 and was stated to have been adopted by Safeer Hussaini Syed and Shaila Nihaal, who are Australian citizens or permanent residents. The core of the dispute concerned whether the adoptive parents met the requirement of having resided overseas for more than 12 months immediately prior to the visa application lodgement.

The legal issue before the Tribunal was to determine if the adoptive parents satisfied sub-paragraph 102.211(b)(ii) of Schedule 2 to the Migration Regulations 1994, which requires at least one adoptive parent to have been residing overseas for more than 12 months immediately prior to the date of application. The Department had raised concerns that the sponsor and his partner had not met this offshore residence requirement. The Tribunal also had to consider whether any overseas residence was "contrived to circumvent the requirements for entry to Australia of children for adoption" under sub-paragraph 102.211(c).

The Tribunal reasoned that while the Department's records indicated the sponsor and his partner had not been overseas for the full 12 months immediately prior to the application, the circumstances provided by the sponsor warranted reconsideration. The sponsor explained that his ulcerative colitis necessitated further medical investigation in Australia, and his wife's pregnancy complications also required her to be in Australia for specialist advice and the birth of their child. These factors, coupled with the timing of COVID-19 travel restrictions, meant the couple remained in Australia for a significant period before lodging the visa application for their adopted children. The Tribunal found that these circumstances did not suggest the overseas residence was contrived.

Consequently, the Tribunal set aside the decision under review and remitted the matter to the Department for reconsideration. The Tribunal found that the visa applicant met the requirements of cl.102.211(2) of Schedule 2 to the Regulations, specifically addressing the criterion regarding the adoptive parents' overseas residence.