Adoption Visa (Subclass 102): Specific Situations and Citizenship

Adoption Visa (Subclass 102): Specific Situations and Citizenship

In our last article we did an overview of what the Adoption visa (subclass 102) entails, including some important information about the authorities and Acts that the adoption processes are affected by. In this article, we delve into the specific categories under which an adoption falls and the visa criteria surrounding that situation.

Read: Wishing to adopt? Adoption Visa (Subclass 102)

Adoption visa categories

Other the the generic criteria we listed in our last article, one of the following four provisions must be met in the application for an Adoption 102 visa:

Expatriate (private) overseas adoptions: Child adopted under private arrangements by an expatriate Australian/s living outside Australia for more than 12 months at time of application.

STCCA arranged adoptions: Child allocated for adoption to parent/s approved by an Australian STCAA under an agreement other than a Hague Adoption Convention adoption or a bilateral adoption arrangement. The adoption takes place in Australia after a period of supervision (usually 12 months).

Hague Adoption Convention adoptions/bilateral adoption arrangement: Child adopted or allocated for adoption under the Hague Adoption Convention or a bilateral adoption arrangement (to parent/s approved by an Australian STCAA. A Hague Adoption Convention adoption may be finalised outside Australia or in Australia.

Third country Hague Adoption Convention adoptions: Child adopted under the provisions of the Hague Adoption Convention, between the central adoption authorities of two Hague Adoption Convention countries other than Australia. This type of adoption is informally referred to as a third country Hague adoption.

Hague Adoption Convention adoptions

Children adopted with the involvement of an Australia STCAA under the Hague Adoption Convention may take place:

  • In the overseas country (full adoption), or
  • In Australia (simple adoption)

Visa applications for this type of adoption can be made before the adoption is finalised (but the child must have been allocated for adoption.

Documents required

At the time of visa application

A completed form 47CH and form A40CH, any supporting documentation as well as a letter from Australian STCAA supporting the adoption must be submitted. The letter should have:

  • Details of the visa applicant including name, sex, date of birth, nationality and place of usual residence (this shows that a child have been allocated for adoption)
  • A statement that the applicant has been allocated to the prospective adoptive parents (that is, the sponsors) by a competent authority in the country of the child’s usual residence giving the full names of the prospective parents and the name and address of the competent authority
  • A statement that the arrangements have been made in accordance with the Hague Adoption Convention.

The letter must be on the appropriate letterhead and signed and dated.

For the grant of the visa

Where it is a full adoption, an adoption compliance certificate (ACC) will be provided. An ACC means that the adoption is recognised in Australia. This must be provided.

If it is a simple adoption, an ACC will not be provided but there should be evidence from both the CAA of the overseas country and from the STCAA showing that there is an agreement that the child may be moved to Australia for the adoption to be completed. This must be provided.

Bilateral adoption arrangements

Children who are adopted with the involvement of an Australia STCAA under a bilateral adoption arrangement made in accordance with Australian law with another country. These adoptions are full adoptions and recognised in Australia under Australian law.

Visa applications for this type of adoption can be made before the adoption is finalised (but the child must have been allocated for adoption.

Documents required

At the time of visa application

A completed form 47CH and form A40CH, any supporting documentation as well a letter from Australian STCAA supporting the adoption and including:

  • Details of the visa applicant including name, sex, date of birth, nationality and place of usual residence (this shows that a child has been allocated for adoption)
  • Advice that the applicant has been allocated by the relevant CAA outside Australia to the prospective adoptive parents (that is, the sponsors)
  • Advice that the arrangements have been made in accordance with the bilateral adoption arrangement.

The letter must be on the appropriate letterhead and signed and dated.

 For the grant of the visa

The documents that must be required include the:

  • ACC
  • Child’s passport
  • Child’s birth certificate

Other State/Territory arranged adoptions

Other State/Territory arranged adoptions covers children adopted through STCAA adoptions other than the Hague Adoption Convention or bilateral adoption arrangements and are finalised or recognised by a court in Australia after the child enters Australia.

Documents required

At the time of visa application

A completed form 47CH and form A40CH, any supporting documentation as well a letter from Australian STCAA supporting the adoption and including:

  • Details of the visa applicant including name, sex, date of birth, nationality and place of usual residence (this shows that a child has been allocated for adoption)
  • Advice that the applicant has been allocated to the prospective adoptive parents (that is, the sponsors) by a competent authority in the country of the child’s usual residence giving the full names of the prospective parents and the name and address of the competent authority.

The letter must be on the appropriate letterhead and signed and dated.

 For the grant of the visa

The documents that must be supplied include the:

  • Details of child including name, date and place of birth.
  • Details of adoptive parents including names and nationalities.
  • Details of the adoption order (if any).
  • Names and addresses of competent authorities of both Australia and the other country who agreed to the adoption.
  • Permission for the applicant to travel to Australia in the care of the prospective adoptive parents for adoption in Australia.

Expatriate (private) overseas adoptions

Expatriate (private) overseas adoptions categorises children who have been adopted outside of Australia without the involvement of an STCAA, by an Australian citizen, permanent resident or eligible New Zealand citizen who has been living outside Australia for more than 12 months at the time the Adoption 102 visa was made.

In some cases discretionary Assurance of Support may be requested.

More than 12 months

It is necessary that at least one adoptive parent have been residing in any country or countries other than Australia for the 12 months prior to making the visa application. It is not necessary that they have resided in the country where the adoption took place.

The adoptive parent may have brief visits to Australia that would not upset the calculation of the 12 months outside of Australia. A visit is considered brief if it was only for a few weeks and for business or personal reasons – and therefore not a break in residence overseas.

Why? This is to help minimise the chances that the adoptive parent has taken up residence overseas to circumvent the requirements for adopted children’s entry into Australia.

Residency outside Australia

A number of factors may contribute to determining a person’s residence that include:

  • Looking at their passports to determine movements
  • Requesting travel details from other government agencies
  • The purpose of their residency outside Australia
  • If they have had contact with an STCAA and then have no proceeded to make adoption arrangements through the STCAA
  • The circumstances under the adoption was undertaken
  • Employment records
  • School records
  • Accounts and receipts

Full parental rights

For the adoption to be considered, the adoptive parents must have full and permanent parental rights. 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.

Documents required

At the time of visa application

A completed form 47CH and form A40CH, any supporting documentation

For the grant of the visa

The documents that must be submitted include the:

  • Details of child including name, date and place of birth.
  • Details of adoptive parents including names and nationalities.
  • Details of adoption order showing that a legal, full and permanent adoption has taken place.
  • Evidence that residence outside Australia for 12 months or longer was not contrived to circumvent Australian STCAA requirements.

Third country Hague Adoption Convention adoptions

Children who are adopted under the Hague Adoption Convention but an STCAA was not involved in the adoption arrangements are considered Third country Hague Adoption Convention adoptions.

Documents required

At the time of visa application

A completed form 47CH and form A40CH, any supporting documentation, and the ACC by the CCA of the overseas country.

Citizenship for the adopted child

Children who enter Australia for settlement but who are not in the care of, or joining, a parent or relative over 21, are entering Australia under the Immigration (Guardianship of Children) Act (IGOC Act). Adoptions not recognized under Australian law are children entering under the IGOC Act and will remain under the IGOC Act until they (whichever happens first):

  • Become an Australian citizen
  • Turn 18 years of age
  • Leave Australia permanently
  • Have had an order made under the IGOC Act removing them from guardianship

If a child has been adopted and the adoption is recognised under Australian law, the child will not enter Australia under the IGOC Act.

Children who are not under the IGOC Act as the adoption is fulled recognised and legal, become citizens of Australian upon the finalisation of the adoption.

 Hague Adoption Convention adoptions

If an ACC has been issued:

  • This is evidence that the adoption is recognised in Australia
  • The child will not enter Australia under the IGOC Act – and will be a citizen on the settlement of the adoption

If there is no valid ACC, and the adoption is not recognised in Australia and the child may enter Australia under the IGOC Act. If these adoptions are later finalised in Australia, and at least one of the adopting parents is an Australian citizen, and the child is a permanent resident at the time the adoption is finalised in Australia, the child would automatically become an Australian citizen at the time the adoption is finalised in Australia and the IGOC Act will no longer apply.

Bilateral adoption arrangements

As adoptions under bilateral adoption arrangements are recognised under Australian law, the child will not enter Australia under the IGOC Act.

 Other adoptions

If the adoption is not made under the Hague Adoption Convention or a bilateral adoption arrangement, the child will enter Australia under the IGOC Act.

If the adoption is arranged with an Australian STCAA, either:

  • The child will be adopted in Australia or
  • The adoption will later be recognised by an Australian court

If the child is adopted in Australia, the child will become an Australian citizen and the IGOC Act will no longer apply.

If the adoption is recognised by an Australian court, the IGOC Act will continue to operate until child is granted Australian citizenship or turns 18.

In the case of an expatriate adoption (that is, an Australian STCAA was not involved), the IGOC Act will continue to operate until the child is granted Australian citizenship or turns 18.

Here is a helpful table

(Click for a larger view)

Are you still confused about at which point you can apply for your adopted childs Adoption 102 visa or do you wish to just relieve the stress of a visa application and focus on the adoption process? Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.