Numerous visa options are available to those seeking permanent residence based on being a child who has been, or is in the process of being adopted by an Australian citizen, Australian permanent visa holder (PR), or an eligible New Zealand citizen (ENZC).
These visas support the principle of family unity and the interests of family wellbeing. However, adoptions can be incredibly complex, often involving different government departments and authorities, and different laws that must be adhered to depending on how and where the adoption took place.
Given the intricacies of Australian visa’s requirements for adopted children, anyone considering this would be encouraged to have a comprehensive understanding not just of the adoption process itself, but of migration requirements. Otherwise, an adoptive parent may undertake the lengthy and costly process only to discover afterwards that their adopted child does not easily meet (or worse yet, fails) legislated visa criteria.
Migration law’s definition of “adoption”
Australia’s Migration Regulations define adoption as:
- Occurring before the child reaches 18 years of age; and
- Involving an adopter who has assumed a parental role; and
- Either:
- involving a formal process according to law in Australia or another overseas country, or
- arrangements made according to recognised custom of the relevant culture.
Some comments on customary adoptions
The vast majority of adoptions will have been undertaken according to law in Australia or another country. In some rarer circumstances, customary adoptions could be recognised (most usually tribal cultures).
A customary adoption must still confer “full and permanent parent rights” to the adoptive parents, not just guardianship.
If claiming a customary adoption, it must be established that formal adoptions are either not available under the law of the relevant country, or formal adoption is not reasonably practical (due to war or a natural disaster, for example).
What visas are available?
For children adopted by an Australian citizen, PR, or ENZC, there are two visa subclasses available:
- Adoption (Subclass 102) visa, for a child who is offshore/overseas;
- Child (Subclass 802) visa, for a child who is already onshore/in Australia.
It is important to note that for both subclasses, the application will be “invalid” if the child was adopted in a country specified in the Legislative Instrument IMMI 2016/051. At time of writing, only Pakistan is specified. In other words, if the adoption took place in Pakistan, the application will simply be refunded and will not be processed.
Offshore Adoption (Subclass 102) visa
For this visa, the adoption must have occurred in one of four ways
- Expatriate (private) adoption;
- State or territory arranged adoption;
- Intercountry adoption;
- Third country Hague Convention adoptions.
Expatriate (private) adoption
- The adoptive parent must have been residing overseas for 12+ months at the time of the visa application (it is worth noting that the legislation interestingly does not specify that they need to have been residing in the same country as the child);
- The adoptive parent’s overseas residence must not have been “contrived to circumvent the requirements for entry to Australia” of children for adoption under Australian state/territory adoption law;
- The adoptive parent must have lawfully acquired full and permanent parental rights to the child. This is usually apparent from the text of the adoption order, however an order that only grants guardianship or custody will not satisfy this requirement.
State or Territory arranged adoption
- The proposed adoptive parent must have made a written undertaking to adopt the child; and
- A competent authority in Australia must have approved the prospective adoptive parent.
This option also covers adoptions finalised under Bilateral prospective adoption agreements negotiated prior to Hague Convention which commenced on 1 December 1998 (it is very unlikely any applications would be made on these grounds anymore).
Intercountry adoption
Australia has intercountry programs with Bulgaria, Chile, China, Colombia, Hong Kong, India, Latvia, Poland, South Africa, Philippines, Sri Lanka, and Thailand (Hague Convention countries), plus Taiwan and South Korea under Bilateral Arrangements.
To meet the visa’s requirements through intercountry adoption:
- A competent authority in an overseas country must have allocated the child for adoption in accordance with either:
- the Hague Convention; or
- Regulation 5 of the Bilateral Arrangements Regulations for countries not part of Hague Convention but still comply with standards (Taiwan and South Korea); and
- A competent authority in Australia must have approved the prospective adoptive parent.
Third-country Hague Convention Adoption
- The child must have been adopted in accordance with the Hague Convention in a convention country, by person who was Australian citizen, PR or ENZC at the time of adoption;
- The Australian must be residing in an overseas country, adopting a child from a third country (eg. An Australian residing in Canada, adopting a child from China); and
- A competent authority overseas must have issued an Adoption Compliance Certificate (ACC). This is a document issued by the child’s birth country that confirms the adoption has been made under the Hague Convention.
There is no involvement from a competent authority in Australia.
What is a “competent authority”?
This will depend on the circumstances, country, and way in which the child is adopted, however it may be:
- a State/Territory central authority;
- the commonwealth’s Department of Social Services;
- child welfare authorities;
- a person or body in the jurisdiction responsible for approving adoptions.
Onshore Child (Subclass 802) visa
This visa is available to children who have already arrived in Australia with another visa (as a visitor or student, for example).
The Child (Subclass 802) visa is available because the legal definition of “child” under the Migration Act includes adopted children.
For this visa, the adoption must have been under one of the following four circumstances:
- The adoption was in accordance with the Hague Convention, with an ACC in force;
- The adoptive parent was not an Australian citizen, permanent resident or ENZC at the time of the adoption, but subsequently became one; or
- The adoption involved a competent authority in Australia; or
- The adoptive parent was residing overseas for more than 12 months when the adoption took place or the Minister is satisfied that there are compelling or compassionate circumstances to not apply this criteria.
A major difference between this and the offshore Adoption (Subclass 102) is the potential waiver relevant to expatriate adoptions. For the offshore Adoption (102) visa, the adoptive parent must have been residing overseas for 12+ months prior to the visa application. There is no waiver available, and the requirement is simply either met or not met.
On the other hand, the expatriate adoption provision for the onshore Child (Subclass 802) visa caters to rare instances of children already in Australia whose adoption falls outside the standard provisions, but compelling or compassionate reasons exist to grant the visa nonetheless.
Citizenship by conferral
Once an adopted child becomes a permanent resident, s21(5) of Australia’s Citizenship Act says they can apply for citizenship by conferral before they turn 18 without needing to meet the general residence requirement
Alternatively, Citizenship by adoption is available when at least one adoptive parent is an Australian citizen, and the adoption was under the Hague Convention or a bilateral agreement.
Citizenship by descent?
To be eligible for Australian citizenship by descent, the overarching requirement is that the applicant had an Australian parent at the time of their birth.
The matter of Su, heard by the Administrative Appeals Tribunal and later the Federal Court, considered the meaning of “time of the birth” and tested whether an adopted child could meet this.
Initially, the Department of Home Affairs refused Su’s Citizenship by descent application, on the grounds that Su did not have an Australian parent at the time of their birth. The circumstances were that Su’s biological parents abandoned her at the hospital, and an Australian (who became the adoptive parent) took on parental responsibilities just a few days later.
On appeal, the Tribunal overturned the refusal saying:
“I simply cannot accept that ‘at the time of the birth’ is the precise moment in time on a particular day that a child is born. This interpretation would not allow for the various experiences of birth that occur in the ordinary sense of the word.”
Despite this, the Minister then appealed the Tribunal’s decision to Federal Court.
The Federal Court overturned the Tribunal’s decision, stating:
“The precise moment of birth as a matter of fact may vary depending on the particular circumstances in a given case. However, irrespective of the identification of the precise moment at which a baby might be said to have been born, the phrase “the time of the birth” denotes a narrow window of time. It does not extend to a period of hours after any one or all of the events we have identified has occurred.”
Ultimately, the Federal Court established that the Australian taking on parental responsibilities several days after Su’s birth was outside the scope of “at time of birth”, meaning that Su could not claim Australian citizenship by descent.
Any questions?
Navigating Australia’s adoption visas requires careful planning to avoid costly mistakes, and it is often worth seeking professional advice to ensure that the legislative criteria is met before commencing the application process. If you have any questions about the best visa pathway to pursue, feel free to contact us by email at [email protected] or phone +61 3 9016 0484 to obtain further guidance.
