The Adoption Subclass 102 visa
For those wishing to adopt a child from overseas you must proceed with the utmost caution if you are intending to sponsor that child for permission to live in Australia.
In a nutshell the Adoption visa (Subclass 102) provides for the permanent migration of a child who is either:
- adopted (or to be adopted), with the involvement of an Australian State/Territory central adoption authority (STCAA), under
- the Hague Adoption Convention, OR
- a bilateral adoption agreement with a competent authority of another country,OR
- another adoption agreement), OR
- adopted by expatriate Australians who have been living outside Australia for more than 12 months before making the 102 visa application
The 102 visa has generally two parts to it then in relation to how the child has been or is going to be adopted.
- Expatriate (private) adoption by Australian residents overseas and
- Adoptions arranged with the involvement of an STCAA.
Private adoptions and Australians overseas
In this edition we are only going to focus on this scenario. For expats who are considering the private adoption process, it is important first of all that you have been living outside Australia for more than 12 months before the application has been made.
It is not necessary for both parents to be outside of Australia for this 12 month period, just one is sufficient to meet this requirement. Brief visits to Australia by the adoptive parent during that period may be counted towards the 12 month period of absence from Australia. However these visits should only be a matter of weeks and should be for business or personal reasons.
“Contrived to circumvent Australian STCAA requirements”?
There is a clause in the law whereby the Department of Immigration and Border Protection (DIBP) will examine the period of 12 month residence was not just set up to get around the complex and difficult procedure in meeting the various STCAA requirements.
For these private adoption visa pathway, the law specifically states; “evidence that residence outside Australia for 12 months or longer was not contrived to circumvent Australian STCAA requirements.”
The term “contrived” is a difficult one to prove in law. As such the DIBP states that case officers must be careful in assessing this requirement:
“the adoptive parent’s intention in residing outside Australia may have been related to the child’s adoption, it is only one of several considerations.”
The other factors case officers will consider (but not limited to):
- looking at their passport to determine movements
- requesting travel details
- asking the purpose of their residency outside Australia
- determining if they had contact with an Australian STCAA and, if so, why they decided to adopt while outside Australia
- the circumstances under which the adoption was undertaken.
- employment records
- school records and
- accounts and receipts
You get the picture then, by these requests, that the DIBP is on the look out for evidence that may indicate that your motivation for living offshore is solely to avoid the STCAA requirements.
Evidence of adoption
In migration regulations there is a definition of what adoption actually is and that the adoption has taken place in accordance to this regulation. This law talks about the child’s age, overseas customs, and formal arrangements.
The DIBP guidelines state the following:
“formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised”
In this instance the adoptive parents must have arranged a permanent legal arrangement under the laws of the country where the child is adopted from, whereby the child is under 18, where the parent (adopter) assumed a parental role in relation to the child (adoptee).
Full parental rights
The adoption must have given the adoptive parent full and permanent parental rights over the child. In the majority of cases the wording of the formal adoption papers (adoption order) legally recognised in the country where the adoption too place will outline this aspect clearly. In most cases this should be apparent from the text of the adoption order. If the order is not in English then of course it will need to be translated (all of it).
Full and permanent parental rights confer on the adoptive parent/s among other things, the right to decide where the child shall live. Orders that grant only guardianship, custody or parental responsibility for the day-to-day care of the child or other lesser rights would not satisfy this provision.
List of formal (private) adoptions acceptable?
In short there are none. The guidelines of the DIBP Procedural Advice Manual (PAM) does not spell out any particular country with any specific example of what constitutes acceptable formal adoption papers.
The key is that the adoption is legally acceptable under the law of where the adoption takes place whereby the new parents are given full and permanent parental rights. It would be a worthwhile exercise to contact the Australian High Commission in the country that is going to process the visa application to see if they can supply any information regarding the types of orders, and by which courts formal adoption arrangements are acceptable.
Potential Parents in Australia?
The reason why we haven’t covered those who live in Australia wishing to adopt a child overseas is because it is far too complicated for a brief article to cover. Contact your local STCAA and you will discover what we mean.
Managing Director & Migration Agent, Australian Immigration Law Services