Statutory Rules 1998 No. 2841

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Migration Amendment Regulations 1998 (No. 7)2

I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations under the Migration Act 1958.

Dated 25 August 1998.

WILLIAM DEANE
Governor-General

By His Excellency’s Command,

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

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1. Name of regulations

1.1 These regulations are the Migration Amendment Regulations 1998 (No. 7).

2. Commencement

2.1 These regulations commence on 1 September 1998.

3. Amendment

3.1 The Migration Regulations are amended as set out in these regulations.

4. Regulation 1.03 (Interpretation)

4.1 Insert the following definitions:

“adoption compliance certificate means an adoption compliance certificate within the meaning of the Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998 or the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

Adoption Convention means the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993.

Note The text of the Adoption Convention is set out in Schedule 1 to the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

Adoption Convention country means a country that is a Convention country under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

bilateral adoption arrangement means an arrangement between Australia and another country that allows the adoption of a child from the other country to be recognised in Australia under the Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998.

competent authority, in relation to an adoption (including a prospective adoption), means:

(a) for Australia:

(i) in the case of an adoption to which the Adoption Convention applies — a State Central Authority within the meaning of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998; and

(ii) in the case of an adoption to which a bilateral adoption arrangement applies — a competent authority within the meaning of the Family
Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998; and

(iii) in any other case — the child welfare authorities of an Australian State or Territory; and

(b) for an Adoption Convention country — a Central Authority within the meaning of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998; and

(c) for a prescribed overseas jurisdiction within the meaning of the Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998 — a competent authority within the meaning of those regulations; and

(d) for any other overseas country — a person, body or office in that overseas country responsible for approving the adoption of children.”.

5. Schedule 2, Part 102 (Adoption)

5.1 Clause 102.111 (definition of adoptive parent):

Omit “paragraph 102.211 (2) (b);”, substitute “paragraph 102.211 (2) (b) or 102.211 (5) (b);”.

5.2 Clause 102.111 (definition of prospective adoptive parent):

Omit the definition, substitute:

“prospective adoptive parent, in relation to an applicant, means:

(a) the unmarried person referred to in subparagraph 102.211 (3) (c) (i); or

(b) each of the spouses referred to in subparagraph 102.211 (3) (c) (ii); or

(c) the Australian citizen, Australian permanent resident or eligible New Zealand citizen referred to in paragraph 102.211 (4) (c);

as the case requires.”.

5.3 Subclause 102.211 (1):

Omit “subclause (2) or (3).”, substitute “subclause (2), (3), (4) or (5).”

5.4 Subparagraph 102.211 (2) (b) (i):

Omit “an eligible New Zealand citizen;”, substitute “a New Zealand citizen who intends to be usually resident in Australia and, on entry to Australia, will be the holder of a special category visa;”.

5.5 Paragraph 102.211 (2) (e):

Omit “the relevant authorities of the overseas country have”, substitute “a competent authority in the overseas country has”.

5.6 Paragraph 102.211 (3) (d):

Omit the paragraph, substitute:

“(d) a competent authority in Australia:

(i) has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or

(ii) has approved the prospective adoptive parent and the spouse of the prospective adoptive parent as suitable adoptive parents for the applicant; and”.

5.7 Paragraph 102.211 (3) (e):

Omit “the relevant authorities of the overseas country have”, substitute “a competent authority in the overseas country has”.

5.8 After subclause 102.211 (3), insert:

“(4) An applicant meets the requirements of this subclause if:

(a) the applicant has not turned 18; and

(b) the applicant is resident in an overseas country; and

(c) a competent authority in the overseas country has allocated the applicant for prospective adoption by a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, or such a person and that person’s spouse; and

(d) either:

(i) arrangements for the adoption are in accordance with the Adoption Convention; or

(ii) the adoption is of a kind that may be accorded recognition by regulation 5 of the Family
Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998; and

(e) a competent authority in Australia:

(i) has approved the prospective adoptive parent as a suitable adoptive parent for the applicant; or

(ii) has approved the prospective adoptive parent and the spouse of the prospective adoptive parent as suitable adoptive parents for the applicant.

“(5) An applicant meets the requirements of this subclause if:

(a) the applicant has not turned 18; and

(b) the applicant was adopted in accordance with the Adoption Convention, in an Adoption Convention country, by:

(i) a person who was an Australian citizen or an Australian permanent resident when the adoption took place, or by such a person and that person’s spouse; or

(ii) a person who was a New Zealand citizen when the adoption took place and, at the time of application:

(A) is an eligible New Zealand citizen; or

(B) is a New Zealand citizen who intends to be usually resident in Australia and, on entry to Australia, will be the holder of a special category visa;

or by such a person and that person’s spouse.”.

5.9 Clause 102.212:

Omit the clause, substitute:

“102.212 The applicant is sponsored by a person who is:

(a) an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or a New Zealand citizen who intends to be usually resident in Australia and, on entry to Australia, will be the holder of a special category visa; and

(b) in the case of an applicant who is a child for adoption —a prospective adoptive parent of the child; and

5.10 After clause 102.227, insert:

“102.228 (1) If:

(a) the applicant has met the requirements of subclause 102.211 (4) or (5); and

(b) the adoption of the applicant took place overseas —

an adoption compliance certificate is in force in relation to the adoption.

“(2) If:

(a) the applicant has met the requirements of subclause 102.211 (4); and

(b) the adoption of the applicant is to take place in Australia —

the Minister is satisfied that a competent authority in the overseas country has given permission for the child to leave the overseas country in the care of a prospective adoptive parent for the purpose of adoption in Australia.”.

6. Schedule 2, Part 152 (Family of New Zealand Citizen)

6.1 Division 152.1:

Omit the Division, insert:

“152.1 INTERPRETATION

“152.111 In this Part:

family head means the New Zealand citizen mentioned in paragraph 152.211 (b).”.

6.2 Subparagraph 152.211 (b) (ii):

Omit the subparagraph, substitute:

“(ii) intends to be usually resident in Australia and, on entry to Australia, will be the holder of a special category visa.”.

6.3 After clause 152.211, insert:

“152.212 (1) If the applicant is the adopted child of the family head, of the spouse of the family head or of both of them, the applicant:

(a) was under 18 when the adoption took place; and

(b) meets the requirements of subclause (2), (3), (4) or (5).

“(2) The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.

“(3) The applicant meets the requirements of this subclause if:

(a) for an applicant who is the adopted child of the family head or of the family head and the spouse of the family head — the family head was not a New Zealand citizen when the adoption took place, but subsequently became a New Zealand citizen; and

(b) for an applicant who is the adopted child of the spouse of the family head only — the adoption took place before the spouse became the spouse of the family head.

“(4) The applicant meets the requirements of this subclause if:

(a) the family head was, when the adoption took place, a New Zealand citizen usually resident in Australia; and

(b) before the adoption, a competent authority in Australia:

(i) approved the family head or the spouse of the family head as a suitable adoptive parent for the applicant; or

(ii) approved both the family head and the spouse of the family head as suitable adoptive parents for the applicant.

“(5) The applicant meets the requirements of this subclause if:

(a) the applicant was adopted in an overseas country by the family head, by the spouse of the family head or by both of them; and

(b) either:

(i) when the adoption took place, the family head, the spouse of the family head or both of them (as the case requires) had been residing overseas for more than 12 months; or

(ii) the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

(c) the Minister is satisfied that such period of residence overseas was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

(d) by the adoption, full and permanent parental rights have been lawfully acquired by the family head, by the spouse of the family head or by both of them (as the case requires); and

(e) a competent authority in the overseas country has approved the departure of the applicant to Australia.”.

6.4 Clause 152.222:

Omit “New Zealand citizen referred to in subclause 152.211 (b)”, substitute “family head”.

7. Schedule 2, Part 802 (Child)

7.1 After clause 802.212, insert:

“802.213 (1) If the person nominating the applicant for the grant of the visa (the nominating parent) is an adoptive parent of the applicant, the applicant:

(a) was under 18 when the adoption took place; and

(b) meets the requirements of subclause (2), (3), (4) or (5).

“(3) The applicant meets the requirements of this subclause if the nominating parent was not an Australian citizen, Australian permanent resident or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, Australian permanent resident or New Zealand citizen.

“(4) The applicant meets the requirements of this subclause if:

(a) the nominating parent was, when the adoption took place, an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

(b) before the adoption, a competent authority in Australia approved the nominating parent as a suitable adoptive parent, or the nominating parent and the nominating parent’s spouse as suitable adoptive parents, for the applicant.

“(5) The applicant meets the requirements of this subclause if:

(a) the applicant was adopted in an overseas country and the nominating parent was, when the adoption took place, an Australian citizen, Australian permanent resident or New Zealand citizen; and

(b) either:

(i) when the adoption took place, the nominating parent had been residing overseas for more than 12 months; or

(ii) the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

(c) the Minister is satisfied that the residence overseas by the nominating parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

(d) the nominating parent has, or the nominating parent and the nominating parent’s spouse have, lawfully acquired full and permanent parental rights by the adoption; and

(e) a competent authority in the overseas country has approved the departure of the applicant to Australia.”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 1 September 1998.

2. Statutory Rules 1994 No. 268 as amended by 1994 Nos. 280, 322, 376 and 452; 1995 Nos. 3, 38, 117, 134, 268, 302 and 411; 1996 Nos. 12, 75 (regulations 7 and 8 were disallowed by the Senate on 11 September 1996), 76, 108, 121, 135, 198, 211 (regulations 4, 10, 11, 13.3, 14-37, 47-49, 51, 53-55, 74, 77.16, 77.19, 78, 85, 119 and 114 were disallowed by the Senate on 7 November 1996) and 276; 1997 Nos. 17, 64, 91, 92, 109, 137, 184, 185, 216, 263, 279, 288, 301 and 354; 1998 Nos. 36, 37, 104 (regulation 15 was disallowed by the Senate on 2 July 1998), 139, 210 and 214.