What is expatriate adoption?

Expatriate adoption occurs when an Australian living abroad adopts a child from the country in which he or she is resident. Expatriate adoption can also include third country adoption, where an Australian living abroad in country B, adopts a child from country C. In both instances, the adoption must comply with the domestic adoption laws of the child’s overseas country of usual residence and must be finalised in that country.

Note: Depending on the law and adoption process of the countries involved, such adoptions may or may not be able to meet Australian migration law or family law requirements.

Australian Commonwealth, state and territory adoption authorities are not responsible for expatriate adoptions, and do not assess or approve applications for such adoptions.

Children adopted by Australian citizens or permanent residents via expatriate adoption arrangements are not automatically entitled to visas for entry to Australia. Any expatriate adoption must meet Australian immigration requirements in addition to being a lawful adoption in the overseas country.  The most appropriate visa is the subclass 102 Adoption Visa.

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Sponsoring a Child to Australia - adoption visa, child visa, orphan visa

If an Australian or New Zealand citizen, or permanent resident wishes to make a migration application for a dependent child, stepchild, or orphaned relative – or is submitting a visa application on behalf of a child whom a person has adopted from overseas – certain requirements must be met in order for the child’s visa to be approved. Depending on the status of the relationship between the parent and the child, an application for the right visa subclass must be submitted in order to ensure the visa application has every chance for success.

Making an application
Irrespective of the type of subclass visa that is applied for the child who is migrating, only an Australian or New Zealand citizen, or permanent resident can bring a child into Australia. In addition, all requested documentation and appropriate fees must be paid as required by the Department of Immigration and Border Protection (DIBP).

In regards to a child who is under the age of 18, if another party who can make a determination on where the child shall reside – but is not the sponsor – then permission from that person must also be sought in order for the child to migrate. Although in certain instances, the Court can issue an order to allow the child to migrate to Australia in specific circumstances.
 
Finally, like all other visa applications made to enter into Australia, the child must meet the health and character requirements.

Applications for a Child visa (subclass 802, 101)
An application made for the visa subclass 802 and 101, the child who is subject to the application must be under the age of 25 years.

However, keep in mind that a child who is 18 years of age or older, must be a full-time student, and financially dependent on the sponsoring parent in order to meet the requirements of the subclass 802 or 101 visa if they are of legal age. On the other hand, if the child has a disability which prevents them from gaining employment, and medical evidence can be provided proving the disability, then the requirements may not be applicable.

It’s important to be aware, that a child who is applying for the subclass 802 or 101 visa, must never have been married, engaged to be married, or is part of a de facto coupling, if they are 18 years of age or older.

Applications for an Orphan Relative visa (subclass 837 or 117)
The overarching requirement for a child who is applying for an Orphan Relative visa, is that the parents of the applicant must have either passed away, be incapacitated, or their whereabouts are unknown – and there is no one else to care for the child.

Similar to the other child migration visas, the child must not be married or in a de facto relationship when making a subclass 837 or 117 visa. However, unlike the Child visa, an applicant for an Orphan Relative visa must be under the age of 18.

An applicant for the Orphan Relative visa must have an Australian relative who can either be a sibling, aunty, uncle, niece, nephew or grandparent, who is able to sponsor the child. Additionally, a spouse of an eligible relation can also submit an Orphan Relative visa.

Applications for an Adoption visa (subclass 102)
Generally speaking, it is the State and Territory adoption agency that is responsible for inter-country adoptions. Like the Orphan Relative visa, the child who is subject to the Adoption visa must be under the age of 18 when the application has been finalised while also residing overseas.

If you have any questions or require advice, please contact Ryan Curtis-Griffiths at Nevett Ford Lawyers Melbourne by telephone: +61 3 9614 7111 or by email: rcurtisgriffiths@nevettford.com.au or any of the other immigration lawyers in the team.

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Federal Government to introduce changes to regulations for overseas adoptions

 

Prime Minister Tony Abbott will slash court processes for some Australian couples trying to adopt children from overseas, in the first of a potential series of changes aimed at making overseas adoptions faster and easier.

 

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