1500163 (Migration)

[2016] AATA 3152

1500163 (Migration) [2016] AATA 3152 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yue Chen

CASE NUMBER:  1500163

DIBP REFERENCE(S):  BCC2010/240368

MEMBER:Glen Cranwell

DATE:29 January 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 29 January 2016 at 9:47am

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 17 December 2014 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 June 2010. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.886.222(3) of Schedule 2 to the Regulations.

4. On 13 November 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 29 January 2016.  The review applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. No response to the hearing invitation was received, although the applicant did lodge a change of address form indicating that she had moved from Brisbane to Sydney.  No request to change the hearing location was received.  The review applicant did not appear before the Tribunal on the day and at the scheduled time and place.  Given the applicant’s change of address, the Tribunal attempted to contact the applicant on her mobile telephone at the time listed for the hearing but she did not answer.  In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. There is no evidence before the Tribunal to indicate that the applicant was sponsored or nominated by a State or Territory government agency. The Tribunal is not satisfied that the applicant meets cl. 886.222(1)(a).

7. The applicant declared on the application form that she was sponsored by the eligible relative, Mr Junhong Bao. The Tribunal finds that the applicant was sponsored in accordance with subitem 1136(3B) of Schedule 1 at the time of making the application. The applicant must therefore meet the requirements of subclause 886.222(3).

8. Subclause 886.222(3)(a) relevantly requires the applicant to be sponsored by a person who has tuned 18 and who is a parent, child or step-child, sibling (including adoptive and step-sibling), aunt or uncle (including adoptive and step) or nephew or niece.

9. The applicant provided the Tribunal with a copy of the delegate’s decision, which contains the following passage:

   On 23 October 2012 this office received information that the applicant JUNHONG BAO were in a contrived marriage and were not living together.  On 17 January 2014 this office wrote to the applicant and invited her to comment on this adverse information.  The applicant was given 28 days to respond.  No response has been received by this office to date.

   On 25 September 2014 and 17 October 2014 this office further wrote to the applicant and requested that she provide evidence of sponsorship by an eligible relative.  The applicant was given 28 days to respond.  No response has been received by this office to date.

10. The Tribunal is not satisfied that Mr Junhonh Bao meets the relationship requirements set out in cl 886.222(3)(a)(iv). For these reasons, the Tribunal is not satisfied that the applicant was sponsored by a person who meets the requirements of cl. 886.222(3). The Tribunal is not satisfied that the applicant meets cl. 886.222.

11. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 886 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Glen Cranwell
    Member