Ula (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, by Kalani Nauvai Ula. The applicant was adopted by Cindy Ula, an Australian citizen, and her husband Tevita Ula, an Australian permanent resident, via an order made by the Supreme Court of New South Wales on 2 February 2018. The central dispute before the Tribunal was whether the adoptive parents had been approved as suitable by an Australian "competent authority" prior to the adoption, as required by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the criteria for a Subclass 802 visa, specifically focusing on subclause 802.213(4) of the Migration Regulations. This subclause mandates that for an adoption to be recognised where the adoptive parent was an Australian citizen or permanent resident at the time of adoption, a competent authority in Australia must have approved the adoptive parent as suitable for the applicant before the adoption took place. The Tribunal also considered other subclauses, including those relating to the Hague Adoption Convention and adoptions where the adoptive parent became an Australian citizen or permanent resident after the adoption, finding that the applicant did not meet these alternative requirements.

The Tribunal reasoned that while the adoption order was made by the Supreme Court of New South Wales, and the Adoption Act 2000 requires a report by an authorised person or approved assessor before an adoption order can be made, this report did not necessarily equate to the specific approval by a "competent authority" as defined for the purposes of the Migration Regulations prior to the adoption. The Tribunal noted that the adoptive parents were an Australian citizen and permanent resident at the time of the adoption, and the adoption occurred in Australia. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the applicant meets the criteria under cl 802.213 of Schedule 2 to the Regulations, implying that further consideration of the "competent authority" approval was necessary.