Wright (Migration)

This case concerned an application for a Visitor (Class FA) visa (Subclass 600) by a child, Precious Katriana Amani, who ordinarily resided in Kenya. The review applicant, Dr. Jennie Wright, sought to sponsor Precious as her granddaughter. The primary dispute revolved around whether Dr. Wright met the definition of a "relative" for the purposes of sponsorship under clause 600.232 of the Migration Regulations, which in turn depended on whether Precious had been "adopted" by Dr. Wright's daughter, Ms. Yasmine Ernst, under the provisions for "customary adoption" in regulation 1.04. The Tribunal considered the application after previous refusals, including one based on the sponsor not being a "relative" as defined.

The legal issues before the Tribunal were whether Dr. Wright qualified as a "relative" of Precious, and consequently, whether clause 600.232 of the visa application criteria was satisfied. This required the Tribunal to determine if Ms. Ernst's assumption of a parental role over Precious, under Kenyan law and circumstances, constituted a "customary adoption" as defined by regulation 1.04 of the Migration Regulations. Specifically, the Tribunal had to assess if the arrangements were made in accordance with Kenyan custom, if the child-parent relationship between Ms. Ernst and Precious was significantly closer than with any other person, if formal adoption was unavailable or not reasonably practicable in Kenya, and if the arrangements were not contrived to circumvent Australian migration requirements.

The Tribunal reasoned that for Dr. Wright to be considered a "relative" (grandparent) under regulation 1.03, Precious must be considered "adopted" by Ms. Ernst, as defined in regulation 1.04. The Tribunal accepted that Ms. Ernst had assumed a parental role over Precious before she turned 18, and that Precious ordinarily resided with Ms. Ernst in Kenya. The Tribunal noted that while formal adoption under Kenyan law was currently subject to a moratorium for foreigners, the circumstances pointed towards a potential "customary adoption" under regulation 1.04(1)(c). The Tribunal found that the delegate's previous decision had failed to consider the provisions for customary adoption.

Ultimately, the Tribunal remitted the application for reconsideration. It directed that the visa applicant, Precious Katriana Amani, be considered to meet the criteria for clause 600.232 of Schedule 2 to the Regulations, indicating a finding that the sponsorship requirement, based on the grandparent relationship through customary adoption, was satisfied. The Tribunal did not assess other visa criteria, as the delegate's decision and the Tribunal's focus were solely on clause 600.232.