Migration and family members with a disability
10 Jun 2020
Snedden Hall & Gallop is occasionally consulted by Australian citizens and permanent residents who have emigrated to Australia, and who have very disabled adult siblings who remain in their home countries. In this article Dominic Cookman explores some of the issues associated with this scenario.
The adult brother or sister with a disability is almost always cared for by our client’s parents, who are elderly or ill, or both. Our clients seek our advice about how they might bring their siblings to Australia to live. Unfortunately, the migration system offers few, if any, avenues for this to take place.
There is, for example, no separate subclass of ‘Sibling visa’ under the Migration Regulations 1994. In theory, if the parents are prepared to migrate, they may be able to include the disabled sibling as part of their application, but parent visas are expensive and can take a very long time to obtain.
One possible option that clients enquire about is whether they can adopt their sibling and bring them to Australia permanently on a Child visa. Unfortunately, under the current dispensation, this is not possible.
The various state and territory adoption acts allow for adult adoption in certain circumstances. In the case of adoption of children from overseas, an adoption must first take place in the home country, and then subsequently an Australian court must issue an order recognising the foreign adoption as valid under the law of the relevant state or territory.
Regulation 1.04 of the Migration Regulations 1994 sets out the definition of adoption for the purposes of the migration system. It prescribes, amongst other things, that an adoptive arrangement can be recognised if (and only if) the adoption occurred before the adoptee obtained the age of 18 years. The regulation further stipulates that the minister must be satisfied that the adoption arrangements have not been contrived to ‘circumvent Australian migration requirements’. There is no provision for exceptions or flexibility in this definition, even in the case of applicants who, though adults in the literal sense, are unable to care for themselves and are as dependent upon their families as any child.
In other words, even if a sibling adoption takes place overseas, and even if an Australian court were to recognise it as valid, the migration system would still step in to prevent the disabled sibling coming to Australia.
There’s really no reason for this.
Not only does this stance entrench discrimination in Australia’s migration intake, it also causes great anguish to Australians who are prepared to make extraordinary sacrifices for their family. They are often faced with the unenviable choice of remaining in Australia and trusting that their sibling will be cared for properly by the state if and when their parents are unable to continue, or else abandoning their lives in Australia and returning overseas. They are collateral damage in an attempt by Home Affairs to use a sledgehammer (refusing to recognise adult adoption) to crack a walnut (the risk that an adult adoptive process might somehow undermine our migration system).
A more realistic and compassionate solution would be for the minister to prescribe a new ‘adoptive sibling’ visa subclass, to cater for the small number of Australian families in this position. This would not open the floodgates but would give suffering Australians and their siblings a fair go.