1420665 (Migration)

[2016] AATA 4642

1420665 (Migration) [2016] AATA 4642 (7 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms JONG RAN KO

VISA APPLICANTS:  Mr JONG JIN KIM
Mrs MI JA SHIN
Mr JAE YOUNG KIM

CASE NUMBER:  1420665

DIBP REFERENCE(S):  OSF2012/088443

MEMBER:Chantal Bostock

DATE:7 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) Subclass 143 visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·cl.143.211(1)(a), cl.143.213 and cl. 143.221 of Schedule 2 of the Migration Regulations;

·The second named visa applicant meets cl 143.311(a) of Schedule 2 of the Migration Regulations; and

·The third named visa applicant meets cl.143.311(b) of Schedule 2 of the Migration Regulations.

Statement made on 07 November 2016 at 12:50pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 October 2014 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. By way of background, the primary visa applicant, his wife and youngest child were sponsored by his eldest child, Shaun Gunn Young Kin, for a subclass 143 visa, lodged on 27 April 2012. Because Shaun was a minor, his aunt, an Australian citizen, and the review applicant in the present case, acted on his behalf in relation to the sponsorship. Before a decision was made on the subclass 143 visa application, the Department cancelled the notice of grant of Australian citizenship given to Shaun. The Department proceeded to refuse the subclass 143 visa application on the basis that Shaun was not an Australian citizen. Shaun sought judicial review of the decision to cancel the notice of his notice of Australian citizenship. On 16 August 2016, the Federal Court, declared that Shaun was an Australian citizen and that the decision to cancel his notice of the grant of citizenship was “wrong”.[1]  

   [1] Kim v MIBP [2016] FCA 959.

3. The review applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Based on the material before it, including the visa application and sponsorship forms, the family members’ birth certificates and the abovementioned Federal Court judgment, the Tribunal makes the findings that follow. The Tribunal finds that the primary visa applicant is the parent of an Australian citizen, namely Shaun. The Tribunal further finds that Shaun is “settled” as defined in reg 1.03 as he has lived in Australia since December 2004, as evidenced by the Department’s movement records. The primary visa applicant therefore meets cl. 143.211(1)(a).

6. The Tribunal finds that as an Australian citizen, Shaun is an “eligible child” within the meaning of reg 1.05. Based on the Department’s movement records, it further finds that his brother, Amor Jae Young Kim is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen usually resident in Australia and is therefore an “ineligible child”. In accordance with reg 1.05(2C), the Tribunal finds that the parent, namely the primary visa applicant, satisfies the balance of family test as the number of eligible children is equal to the number of ineligible children. Based on the Department’s movement records, the Tribunal finds that, at the time of application, the primary visa applicant was neither the holder of a subclass 173 visa nor the holder of a substituted subclass 676 visa and satisfied the balance of family test. The primary visa applicant therefore meets cl. 143.213.

7. Based on the material before it, the Tribunal further finds that the primary visa applicant continues to meet cl. 143.221.

8. Furthermore, in light of the material before it, the Tribunal finds that the second named visa applicant satisfies cl 143.311(a) as she is a member of the family unit of the primary visa applicant and made a combined application with a person who satisfies the primary criteria in subdivision 143.21. It further finds that the third named visa applicant satisfies cl.143.311(b) as he is a member of the family unit of a person who has applied for a Contributory Parent (Migrant)(Class CA) visa and was in Australia at the time of application and on the basis of the information provided in his application, appears to satisfy the criteria in subdivision 143.21.

   DECISION

9. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) Subclass 143 visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

   ·cl.143.211(1)(a), cl.143.213 and cl.143.221 of Schedule 2 of the Migration Regulations;

   ·The second named visa applicant meets cl 143.311(a) of Schedule 2 of the Migration Regulations; and

   ·The third named visa applicant meets cl.143.311(b) of Schedule 2 of the Migration Regulations.

   Chantal Bostock
   Member