Tran (Migration)

The Administrative Appeals Tribunal considered whether a Subclass 101 (Child) visa should be granted to the visa applicant, sponsored by the review applicant. The central dispute concerned whether the review applicant had assumed a parental role in relation to the visa applicant under formal adoption arrangements made in accordance with Vietnamese law, as required by regulation 1.04(1)(b) of the Migration Regulations 1994. The Tribunal also had to consider whether the visa applicant continued to meet the criteria for a dependent child at the time of the decision.

The primary legal issue before the Tribunal was to determine if the review applicant had satisfied the requirements of regulation 1.04(1)(b), which mandates that the adopter assumed a parental role in relation to the adoptee under formal adoption arrangements. This required the Tribunal to be satisfied that the persons recognised as parents before the adoption ceased to be so recognised, and the adopter became recognised as the parent. The Tribunal also needed to assess whether the visa applicant met the definition of a "dependent child" under regulation 1.03 and clause 101.211 of the Migration Regulations 1994, both at the time of application and at the time of the decision.

The Tribunal acknowledged that formal adoption arrangements were made on 6 August 2009, as evidenced by a Vietnamese document. However, the Tribunal found significant inconsistencies in the evidence presented, particularly regarding the review applicant's credibility and the circumstances surrounding the adoption. The Tribunal concluded that the review applicant had not genuinely assumed a parental role in relation to the visa applicant, suggesting the adoption may have been contrived to achieve a migration outcome. Consequently, the Tribunal found that the criteria for a Subclass 101 visa were not met.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. No claims were advanced in respect of other visa subclasses within Class AH.