Tofa Siupolu (Migration)

This matter concerned a review applicant seeking an Adoption (Class AH, Subclass 102) visa. The dispute arose when the visa application was refused, and the applicant sought review of that decision. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the review applicant met the criteria for an Adoption (Subclass 102) visa, specifically the requirement under cl 102.211(2)(b)(ii) that the applicant had resided overseas for at least 12 months preceding the application. The Tribunal was also required to consider whether the applicant met the criteria for other subclasses within the Child (Migrant) visa class, namely Subclass 101 (Child) and Subclass 117 (Orphan Relative) visas, and whether to refer the case for Ministerial Intervention under s 351 of the Migration Act 1958 (Cth).

The Tribunal reasoned that the review applicant had not met the criterion under cl 102.211(2)(b)(ii) as she had not resided overseas for the requisite 12 months prior to the application date of 2 November 2017. The Tribunal also considered the Subclass 101 and 117 visa criteria and found no evidence that the applicant met these. Regarding Ministerial Intervention, the applicant admitted not meeting the overseas residency requirement. After considering the applicant's case and relevant ministerial guidelines, the Tribunal decided not to refer the matter for Ministerial Intervention, noting that the applicant could still make a direct request to the Minister. Consequently, the Tribunal affirmed the decision not to grant the Adoption (Subclass 102) visa.